
nass / "I 2 




PRESERVATION OF NIAGARA FALLS 



HEARINGS 

BEFORE THE 

COMMITTEE ON FOREIGN AFFAIRS 

HOUSE OF REPRESEl^TATIYES 

JANUARY 16, 18, 19, 20, 23, 26, AND 27, 1912 
ON 

H. R. 6746 

BY MR. SMITH OF NEW YORK : A BILL TO GIVE EFFECT TO THE 

FIFTH ARTICLE OF THE TREATY BETWEEN THE UNITED 

STATES AND CANADA, SIGNED JANUARY 11, 1909 

AND 

H. R. 7694 

BY MR. SIMMONS : A BILL TO GIVE EFFECT TO THE FIFTH ARTICLE 

OF THE TREATY BETWEEN THE UNITED STATES AND 

GREAT BRITAIN, SIGNED JANUARY 11, 1909 



COMMITTEE ON FOREIGN AFFAIRS. 

(Committee room, gallery floor, west corridor. Telephone 230. Meets on call.] 
William Sulzer, New York, Chairman. 

Henry D. Flood, Virginia. Charles M. Stedman, North Carolina. 

John N. Garner, Texas. Edward W. Townsend, New Jersey. 

George S. Legare, South Carolina. Byron P. Harrison, Mississippi. 

AViLLLVM G. Sharp, Ohio. David J. Foster, Vermont. 

Cyrus Cline, Indiana. Willl\m B. McKinley, Illinois. 

Jefferson M. Levy, New York. Henry A. Cooper, Wisconsin. 

James M. Curley, Massachusetts. Ira W. Wood, New Jersey. 

J. Chas. Linthicum, Maryland. Richard Bartholdt, Missouri. 

Robert E. Difenderfee, Pennsylvania. George W. Fairchild, New York. 

W. S. Goodwin, Arkansas. N. E. Kendael, Iowa. 

Frank S. Cisna, Clerk. 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1912 



PRESERVATION OF NIAGARA FALLS 

HEARINGS 

BEFORE THE _ .. 

u'^ COMMITTEE ON FOREIGN AFFAfiS" 

HOUSE OF REPRESEI^JTATIYES 

JANUARY If). IS, 19, 20, 23. 2«i, AND 27, 1912 

ON 

H. R. (i746 

BY MR. SMITH OF NEW YORK: A BILL TO GIVE EFFECT TO THE 

FIFTH ARTICLE OF THE TREATY BETWEEN THE UNITED 

STATES AND (CANADA, SIGNED JANUARY 11, 1909 



AND 



H. R. 



BY MR. SIMMONS : A BILL TO GIVE EFFECT TO THE FIFTH ARTICLE 

OF THE TREATY BETWEEN THE UNITED STATES AND 

GREAT BRITAIN SIGNED JANUARY 11, 1909 



COMMITTEE ON FOREIGN AFFAIRS. 

ICommittee room, gallery floor, wesl corridor. Telephone 230. Meets on tall.] 
William Sui.zer, New York, Chairman. 

Henry D. Flood, Virginia. Charles M. Stedman, North Carolina. 

JouN N. Garner, Texas. Edward W. Townsend, New Jei-sev 

George S. Legare, South Carolina. Byron P. Harrison, Mississippi. " 

William G. Sharp, Ohio. David J. Foster. Vermont. 

Cyrvs Cline, Indiana. Willlam B. Mckinley, lUinois. 

Jefferson M. Levy, New York. Henry A. Cooper, Wisconsin. 

James M. Curley, Massachusetts. Ira W. Wood, New Jersey 

J. Chas. Linthicum, Maryland. Richard Bartholdt, Missouri. 

Robert E. Difenderfer, Pennsylvania. George W. Fairchild, .New York 

W. s. Goodwin, Arkansas. N. E. Kendall. Iowa. 

Frank S. Cisna, Clerk. 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1912 



; 1 / : 







a(v n. 



jpi? 



>Ni 



COI^TENTS. 



Page. 

Statement of Rei)resentative James S. Simmons " 1-7 

House bill No. 7694, Sixty-second Congress 7 

House bill No. 6746, Sixty-second Congress 7-8 

Statement of Representative Charles B. Smith 8, 285-292 

The Burton law 8-10 

House joint resolution extending operation of the Burton law 10 

Treaty between the United States and Great Britain 10-16 

Protocol of exchange 16 

Statement of — 

Representative Daniel E. Driscoll 16-17 

Representative Frank E. Doremus 18-1^ 

Mr. George P. Sawyer 19-26 

Gen. Wm. H. Bixbv, Chief of Engineers, United States Army 26-40 

Mr. Richard B. Watsons '.' 35, 169-179, 279-281, 311, 315 

Mr. Edward A. Wickes 37 

Rome G. Brown 40-77, 281-284 

Rules of law as to Federal control 43 

Rules of law as to State control and as to vested property rights of ripa- 
rian owners 43 

Engineer's report on navigable capacity of river and lake 56 

Permits for diversion 58 

Summary of reports published in Senate Document 105 and in House 

Document 246, Sixty-second Congress 67-75 

Memorandum on Senate joint resolution 143 75-77 

Senate joint resolution 143 77 

Gen. Francis V. Greeue: 

Oral statement of 77-95, 202-204, 311-315 

Written statement of 95-104 

Supplementary statement of 308-311 

Statement of — 

Edward T. Williams 104-105 

Mr. .Morris Cohn 105-110, 281, 307 

Mr. A. C. Morrison 110-112 

Mr. Millard F. Bowen 113-117, 124-130 

Mr. Oscar E. Fleming 117-122 

Maj. W. B. Ladue. . ^ 122-124, 190-204, 299, 308 

Written statement of Mr. Isham Randolph 124-127 

Contract form with municipalities 127-129 

Changes in Smith bill suggested by Mr. Bowen 130 

Petition in behalf of Erie and Ontario Sanitary Canal Co 130-132 

Act granting Keokuk and Hamilton Water Power Co. right to construct dam 

across Mississippi River 132 

Proposed bill giving effect to treaty of Jan. 11, 1909 133, 323 

Brief of Millard F. Bowen. for Erie and Ontario Sanitary Canal Co 135 

Statement of — 

Mr. George F. Monahan 135-143 

Mr. J. Boardman Scovell 143 

Letter of Gov. John A. Dix. of New York 157-167 

Statement of — 

Mr. Albert F. Eells 167-169 

Mr. J. Winthrop Spencer 179-189^ 

Paper on '• E^■olution of the Falls of Niagara," by J. W. Spencer 185- 

Letter of Referendum League of Erie County 187 

Opinion by Secretary of War Taft .' 191-19S 

Act of June 29, 1906, for the control and regulation of the waters of Niagara 

River, etc 198 

Permit to Niagara Falls Electrical Transmission Co. and other companies 202 

Senate Document No. 242. 5f)th Congress 205-229 

28305—12 1 1 



II CONTEXTS. 

Page. 
Report of the American member? of the International Waterways Commist-ion, 
with letters from the Secretary of State and the Secretary of War, including 

memoranda regarding the preservation of Niagara F'alls. 205-213 

Reports upon the existing water-jwwer situation at Niagara Falls, so far as 

concerns the diversion of water on the American side 213 

Report by ("apt. Charles W. Kutz. Corps of Engineers 215 

The Niagara Falls Power Co 216 

The Niagara I'alls Hydraulic Power and Manufacturing Co 217 

Industries using water for water purposes derived from Erie Canal at or 

near Lockport, N . Y., and at Medina, N . Y 218 

Reports concerning the Canadian power companies and their associated trans- 
mission comj)anies 220 

Report by Capt . ( harles \N'. Kutz, Corps of Engineers 222-229 

The ( )ntario Power Co 222 

The Electrical Devi?lopment Co 224 

The Canadian Niagara Power Co 225 

International Railway Co 226 

Statement of — 

Mr. Clark H. Hammond 230-242 

Mr. Edward Haggeman Hall 243 

Mr. J. Horace MrFarland 243-250. 279-280 

Dr. Allen D. McLaughlin 251-258 

Extracts from Bulletin No. 77, Hj-gienic Laboratory 251 

Paper bv Health (XKcer Robert Talbott, of Niagara 'Falls 257 

Mr. Philip B. Barton : 259-274, 284 

Telegram— LvTiian Abbott to Chairman 275 

Statement of Prof. James Henry Harper 275-277 

Table showing geographical distribution of typhoid fever in the State of New 

York 278 

Letter of — 

Frank C. Ferguson 285 

Charles M. Heald 286 

George B. Burd. 287 

Petition of citizens of Niagara Falls, N . Y 287 

Statement of Judge Daniel J. Fennewick 292-298 

Table and statement — estimated diver.-^ions, December, 1911 299 

Stalemeut of effect on Lake Erie. commerce 299 

Statement as to use of water diverted from Erie Canal bv the Ilvdraulic 

Race Co .^ '. 300 

Letter of Hydraulic Race (^o 300-301 

Permit to — 

Lockport Hydraulic Co 301-302 

Niagara PXlls Hvdraulic Power and Manufacturing Co 302-303 

Niagara Falls P(iwer Co 303-304, 305 

Permit for the transmission of electrical power from Canada into the United 

States ; 304-305 

Permit to Niagara, Lockport & Ontario Power Co 306-307 

Statement of — 

Hon. Thomas Cai-mody, attorney general, State of New York 316-329 

Mr. George H. Blackstock ".^ 329-331 

Mr. Millard F. Bowne 331-332 

Closing summary by Rome G. Brown in behalf of the Niagara Falls Power Co. 

and Canadian Niagara Co 332-344 

The situation of the Niagara Falls Power Co 332 

Situation of the Canadian Niagara Power Co - . 333 

The equitable position of bolJi the American and Canadian power companies 334 

The question of rates 336 

As to rates for power produced on the American side 336 

First charge for demand 337 

Second charge for energy 337 

Demand rate 337 

Rates for power produced on the Canadian side 339 

Scenic beauty plus industrial grandeur 339 

The camjKiign of scare 343 

Resolutions of the Board of Trade of Niagara Falls .-••.••• '^^^ 

Letter of J. S. Kennedy, secretary public service commission, second district, 
New York 345 



CONTENTS. Ill 

Page. 
Letter of W. J. Meyers, statistician, public service commission, second district, 

New York 345 

Argument of Hon. Francis Lynde Stetson before the Secretary of War 346 

Some misstatements by Mr. McFarland 346 

Letter of the Queen Victoria Niagara Falls park commissioners 347 

The comparative cost of Niagara power 352 

The marvelous achievement of the Niagara Falls Power Co 353 

H. G. Wells on the Niagara Falls 353 

The testimony of the Rev. J.N. Halleck, D. D 354 

The Niagara Falls Power Co. not a vandal 355 

Letter of New York State engineer and surveyor 359 

Prior and preferential right of Canadian Niagara Co 362 

The Ontario Co. 's position 363 

Power deliveries by our two companies 364 

The claims of the two transmission companies 365 

The claim of the Electrical Development Co 365 

Concerning international treaty .' 365 

Conclusion 367 

Appendix A. The priority of the Canadian Niagara Co 368 

Appendix B. Letter of the president of the American Civic Association 

and reply of Mr. Stetson 369-370 

Appendix C. Letter of Mr. Stetson to Capt. Barden, Corps of Engineers. . 370 

The preservation of Niagara Falls 372 

Letter of C. T. WilHams to Scientific American 373 

Letter of Secretary of War Stimson 373 

What the American Civic Association is and does 373 

Decision of the Circuit Coiu-t, United States, within and for the district of Colo- 
rado, The Cascade Town Co. and Leander A. Bigger, complainants, v. The 

Empire Water & Power Co. " 374-380 

Telegram of the Merchants' Association of New York 380 

Letter of J, L. Hudson to Mr. Richard B. Watrous 380 

Erie & Ontario Sanitary Canal Co., proposed bill for Congress 381 

Resohitions of the Trades and Labor Council of Niagara Falls, N. Y 382 

Letter of — 

The Toronto Power Co. to the Secretary of War and indorsements 382-393 

The Erie & Ontario Sanitary Canal Co. to Secretary of War 383 

John W. Williams to Chairman Sulzer 384, 386 

Millard F. Bowen 384 

James King Duffy 384 

Clifford B. Harmon 385 

New York Conservation Commission 385 

Senator T. E. Burton 385 

Chamber of Commerce and Manufacturers' Club 385 

Telegram of — 

New York State Conservation Commission 386 

Reply of chairman ' 386 

Chairman Sulzer to — 

Gov. Dix 387 

Governor's secretary 387 

Public-service commission, second district. New York 387 

Letter of — 

J. Horace McFarland 387 

Attornev Gener.d Thomas Carmody 388 

Message of President Taft ." 388 

Letter of Secretary of War to President 388 

Memorandum concerning the re.^trictionr-on the u.-<e of Niagara power, Gen. 

Francis V. Greene 389-391 

Exhibit A: 

The Burton law 392 

Joint resolution (Public, House joint resolution 262), approved March 3, 

1909 393 

Exhibit B: 

Treaty between the United States and Great Britain — Boundary waters 

between the United States and Canada 393 

Protocol of exchange 1 398 

House bill 7694, Sixty-second Congress, introduced by Mr. Simmons 399 



1 



PRESERVATION OF NIAGARA FALLS. 



Committee on Foreign Affairs of the 

House of Representatives, 
Tuesday, January 16, 1912 — 10.15 a. m. 

Mr. William Sulzer, of New York, chairman. 

The Chairman. We will take up for consideration this morning 
the bills relating to Niagara Falls, introduced by Mr. Simmons and 
by ]Mr. Smith, of New York. We will hear from Representative 
Simmons. You may proceed, Mr. Simmons. 

Mr. Flood. Mr. Simmons, what is the number of your bill ? 

Mr. Simmons. H. R. 7694. 

The Chairman. Proceed, Mr. Simmons. 

Mr. Simmons. Mr. Chairman and gentlemen of the committee, 
the matter you have under consideration is of the greatest importance 
to me, for the reason that I not only represent the district in which 
Niagara Falls is located, but I live in the cit}^ of that name, and I 
lived there before the great electrical power development was 
begun, and I have therefore had every opportunitj'^ to watch all the 
conditions as they have existed, and I believe I understand the 
situation. 

Prior to the advent of the electrical developments of Niagara 
Falls the people who lived there were principally engaged in taking 
care of t()urist:>. The villages of Niagara Falls and Suspension 
Bridge at that time had a population of 10.000 people. These people 
had their money invested in boarding houses, hotels, stores, and the like, 
and their principal occupation Avas taking care of the tourists visiting 
the Falls. These people had a greater interest in Niagara Falls than 
any other people in the world, for the reason that they were the only 
people who had a financial interest in them ; and if there had been any- 
thing proposed or contemplated which in their judgment would have a 
tendency to mar the scenic beauty of Niagara Falls, they would have 
been the very first people to have raised their voices in opposition, and 
I think they would have had the best right to have objected, for the 
reason that they were the only people who had a vested interest in 
the Falls. Now, I am here this morning to represent those people 
and also to represent about 2.'),000 additional residents who have come 
there since the power development started; and T want to say to you 
that if it were possible to liave all these people come before this 
committee this morning, they Avould frankly and unanimously'' state 
that the diversion of water from the Falls has not atfected the 
scenic beauty of the Falls in the slightest extent, and that the tourist 
travel has not been afi'ected thereby, but on the contrary it has 
been largely increasing. This is no issue, in my judgment, which 
contemplates doing a thing which is going to interfere witli the 

I 



)i PRESERVATION OF NIAGARA FALLS. 

scenic beauty of Niagara Falls or to any appreciable extent change 
its scenic status. All that we are asking to do is that we ma}' use 
some of the surplus water of the Niagara Kiver which is not at 
all necessar}' for scenic beauty. AVhcn the present law was en- 
acted it was onl}' as a temporary measure: it was only enacted for 
three years, and its object was that it would stop jiower development 
at Niagara Falls until we could determine the quantity of water 
that could be diverted from the Niagara Eiver without affecting 
scenic beauty. 

Mr. Flood. When did this power development begin at Niagara 
Falls? 

Mr. Simmons. About 1895. 

Mr. Morris Cohn, of Niagara Falls. That is hardly correct. The 
company that I represent had a canal put through in 1873. 

Mr. Simmons. I supposed lie meant the thing on a large scale. 

Mr. Flood. That is what I meant. Mr. Simmons. 

Mr. Simmons. Noav, as so(m as this present law was enacted this 
Government took up the question wdth Great Britain for the purpose 
of constructing a law for both sides of the river. We knew it would 
be useless for us to do anything if Canada was not going to act with 
us. Commissioners were appointed by this Government and com- 
missioners were appointed by Canada, or Great Britain, and they took 
up this question to determine what quantity of water could be di- 
verted from the river without harmful etl'ect on the scenic i)eauty. 
They gave the matter the most careful investigation and finally 
reached their conclusion and made their report, and upon that the 
treaty between the United States and Great Britain was made. 
Under that treaty we were permitted to divert 20,000 cubic feet of 
water per second on this side and our good neighbors, the Canadians, 
were permitted to divert 3(5,000 cubic feet of water per second. We 
thought at the time that the provisions of the treaty were made 
known that it was unfair to us in that we were })ermitted to take 
20,000 cubic foot seconds while our neighbors were permitted to take 
36,000 cubic foot seconds, Avlien we supposed both countries to own 
the waters jointly. We, to use a connnon expression, thought that 
w^e had rather the short end of it. But we were not dissatisfied. We 
are perfectly satisfied now. All that we are asking is that we may be 
permitted to take the water that we were allowed under the treaty. 

INIr. Flood. AVhen was that treatv negotiated or concluded? 

A Member. 1910. 

Mr. Simmons. Of the 20,000 cubic feet per second that we were 
permitted to use under the treaty we are only diverting ir),()00. 

The Chairman. The convention or treaty between the United 
States and Great Britain was concluded January 11, 1909. 

Mr. Simmons. Therefore, gentlemen, the only question that is be- 
fore you, in so far as the diversion of water is concerned, is whether 
or not this 4.400 cubic feet can safely be diverted from the river. In 
the treaty wo were willing that Great Britain might divert 36,000 
cubic foot seconds with our consent, and it would seem to me, under 
the circumstances, to be altogethei- unreasonable if we were now to 
limit ourselves to the present diversion of only 15,600 feet and deny 
ourselves the right to take the additional 4,400 feet. 

Mr. Dii'ENDERFER. How luucli of the 36,000 feet do the Canadians 
divert at this time? 



PRESERVATION OF N'lACiARA FALLS. 6 

Mr. Simmons. I think I have the tigures here. 

Mr. DiFEKDEHFKR. But they do not r.se all they are allowed under 
the treaty? 

Mr. Simmons. Oh, no. 

A Member. How much are we allowed under the treaty ( 

The Chairman. Twenty thousand cubic feet. 

Mr. Simmons. Twenty thousand. This can be diverted Avithout 
the slightest effect upon the Falls. In fact. I do not believe there 
is a liA'in<i' man who can stand in the presence of the cataract and 
tell whether -i.-tOO feet of water, more or less, is jJ!;oini>" over the 
Falls at the time. To the enoineer's calculation there is a slight 
effect, but to the eye there is none. The engineer's instrument dis- 
closes the fact that the diversion of 4,400 feet would affect the 
American Falls one-tenth of an inch and the Canadian Falls less than 
an inch and a half. I have looked upon the Falls under so many 
different C(mditions that I am perfectly satisfied that this 4,400 feet 
of water could never be observed by the eye of man. If legislation 
was ])roposed to take water from the Niagara River that v. ould impair 
its scenic beauty, the people I represent would be the first to raise the 
voice of opposition to it. I think I understand the situation from 
daily contact with it : and we are perfectly satisfied this diversion 
could be made without any harmful effect. Under the existing law 
the Secretary of War has issued permits for 15,600 feet of water. 
Five hundred of this was given to the Erie Canal and 15.100 has 
been given to the two existing power companies, 8,600 feet to the 
Niagara Falls Power Co. and 6.500 feet to the Niagara Falls Hydrau- 
lic Power & Manufacturing Co. 

Mr. DiFENDERFER. Thev are corporations? 

Mr. Simmons. Yes. 

The Chairman. Those are the only companies on our side that are 
using the water? 

Mr. SiJiMONS. Yes, sir. I want you gentlemen to get into your 
minds the great benefit that has come from the use of something that 
has not hurt anybody. Now. from the use of this 15,100 feet of 
water we are making a daily generation of 204,800 horsepower. To 
produce this horsepower from coal would require the annual con- 
sumption of 3,686,400 tons of coal. The accomplishment of this 
prodigious result has been done without the least harmful effect to 
the scenic beauty of Niagara Falls and without the use of any of the 
exhaustible resources of our country — mea^ely making use of some- 
thing which has heretofore never performed any service to the 
American people. Now, with these facts before us. both as to results 
and effects, the question is whether Ave can safely diA'ert the 4,400 
additional feet. 

A Me:\iher. Hoav much is being utilized of this 15.600 feet ? 

The Chairman. All of it. 

Mr. SoiMONS. Practically all of it. M> have hoav to get at the 
results of actual tests made there. SeAeral years ago we closed 
doAvn the poAver houses, restored to the river all the Avater, and 
made careful measurements, and they disclosed the fact that the 
diA^ersion of 15.100 feet of Avater loAvered the American Falls three-* 
eighths of an inch and the Canadian Falls 4.8 inches, and upon 
this hypothesis the diA-ersion of the 4.400 feet of Avator Avould lower 
the American Falls less than one-tenth of an inch and the Canadian 
Falls les^ th.an H inches. Noav. Avhile these diA-ersions Avill show the 



4 PRESERVATION OF NIAGARA FALLS. 

small results I have mentioned, they have ])ositively no effect upon 
the eye. Now, this is a perfectly cleai- and simple proposition that 
you have before you. If you will permit me to digress a little from 
the diversion of water on the American side. I want to bring to 
your attention the results that would come fnmi the use of .^6,000 feet 
of water used on both sides of the river, and which. I claim, can be 
diverted without harmful effect. 

Mr. Flood. In your bill, who gets the benefit of this 4,400 feet? 

Mr. Simmons. My bill does not atteuipt to give it to anybody. 

Mr. Flood. You leave it with the Secretary of War? 

Mr. Simmons. Yes; to increase this power from lo.GOO to 20,000. 

The Chairman. That is the amount we are entitled to under the 
treaty ? 

Mr. Simmons. That is the amount we are entitled to under the 
treaty. 

Mr. Levy. That is given by the State of New York. 

Mr. SiM^roNS. Not necessarily. 

Mr. Frx)0D. No; the Federal Government controls that. 

Mr. Levy. Do you mean that that 4,400 feet additional shall be 
given without the consent of the commissicmers of the State of New 
York? 

Mr. Si^rMONS. Yes; we want the commissioners of the State of 
New York to consent to that. Now, if we use tiiis oG,000 feet of 
water, it will enable us to develop 790.200 horsepower. To produce 
this same horsepower from coal would require the annual consump- 
tion of 14,241. (100 tons of coal. 

I therefore assert, without, I think, any fear of contradiction, that 
the Niagara Falls power proposition is the greatest conservation 
project in the United States. 

Mr. DiFEKDERFEK. Then is it not too great to give to any individual 
corporation? 

Mr. Stmmoks. Now that is entirely with the counnittee. I am not 
commenting on that just now. 

j\Ir. DiFENDEKFEK. That, to uie. has a greater point than the scenic 
beauty. 

Mr. Simmons. The difference in this Avould be the period of one 
year. Just let us carry that to the results that would be accomj^lished 
in 50 years: then we would save in nature's storehouse 712,680,000 
tons of coal. 

I Avish to bring to your attention these points: First, will you per- 
mit the 4,400 feet of water to be diverted, which we are allowed 
under the treaty and which I have tried to explain can be done 
without any harmful elfect. and the benelits of which will be so great 
to us if it is permitted? Second, will you not consent to raise the 
limitation on the im]jortation of power from Canada? It seems to 
me it would be unbusinesslike for us to legislate, erecting barriers 
against our getting the benefit of this power that is being generated 
in Canada. We have willingly consented that Canada shall take 
the water, and under the provisions of the treaty Canada left it en- 
tirely open — that the water, while developed on their side, could be 
brought over and used in this country. 

Mr. Flood. You make no limitation on Canada in your bill? 

Mr. Simmons. No: Canada was the one, if anyone should have 
desired to prohibit its couiing over. They were the ones to have done 



PBESERVATION OF NIAGAEA FALLS. 5 

it, and in making the treaty they were perfectly willing that the 
power should be brought over, and it would seem to me that it would 
be perfectly absurd for us to continue a law denying the right for us 
to use it. 

Mr. Flood. Have you considered the question of whether there 
should be a charge on what is being used ? 

Mr. SiMMOisS. As far as New York is concerned, we have a public 
service commission. If it went into another State it would be under 
another arrangement. 

]Mr. Flood. Do you think this company should be permitted to 
charge more on this side than in Canada? 

Mr. SiMMO?«s, I think not. but the Canadian Government transmits 
the power to the people without any profit, or actual cost to the Gov- 
ernment. Now, if the United States Government is going to transmit 
this power, why, I would say that we would probably get it under like 
conditions; but I do not think that a private corporation could de- 
liver it at the same price as in Canada. 

Mr. Flood. Don't you think there ought to be some limit, so that 
the cost would not exceed the price of transmission '( 

Mr. Simmons. ^Ve liave a commission which regulates all these 
things. 

Mr, Flood. Is there such a commission in Michigan ? 

Mr. Simmons. I do not knoAv ; but in so far as the State of New 
York is concerned, we have ample protection. 

Mr. Kendall. Does your State commission have jurisdiction over 
commodities transmitted into the State by other commissions? 

]\lr. S131MONS. I think so. I am not a lawyer, but we are going 
to have some who can ansAver. 

Mr. Kendall. This is a commodity transmitted into this State 

The Chair3Ian. The New York Public Service Commission has the 
right, under the statutes of New York, to regulate the price of power. 

]Mr. Kendall. But suppose the i^urchn.se is made by the consumer 
in Buffalo from the Canadian authorities, and the delivery is made 
in pursuance of that purpose ( 

The CiiAiKMAN. That would be a ci)ntract, and the State could not 
interfere with that. 

Mr. Levy. That does not cover the point. The private concern 
you are speaking of 

]Mr. Kendall. I am speaking of a consumer in Buft'alo who pur- 
chases in Canada. "Would the public service commission in New 
York have jurisdiction to control the rates? 

Mr. Si:\iM0NS. To charge the i:)rivate consun^.er? 

Mr. Kendall. Yes. 

Mr. SoiMONs. Absolutely. 

Mr. Difendekfek. Without a tariff? [Laughter.] 

Mr. Simmons. The tariff would not have anything to do with it. 
They have only to do with Avhat the company shall charge the con- 
sumer. If they think it is too high, they have full authority to make 
that price whatever they please, and there is no redress from the 
public service commission. 

jNIr. Levy, What is the present hnv with reference to transmission? 
That is, do you ha\e to have a permit from the Secretary of AA'ar in 
order to brine it here? 



6 PRESERVATION OF XIAGAEA FALLS. 

Mr. Snr.MONs. The existino- law provides that we can bring in 
1(>0.000 liorsepower. and that states the amount that each company 
shall bring in. 

Mr. Kendall. I did not mean to interrupt your statement, I think 
you had better go on. 

Mr. Simmons. I thouglit I could give you my statement better if 
I was not draAvn out on ditt'erent phases of the case. There are a 
great many to be heard and they want to get away. I shall be 
veiT glad to come before the committee at any time you wish. Now, 
the importation of liower from Canada I tliink 1 covered. There 
is one other feature of the existing law that I want to bring to your at- 
tention, and that is that under the present law we can only divert 15.(i00 
feet of water from the Niagara River. We have a fall in the 
Niagara Kiver. between what is known as the Devil's Hole and the 
Whirljiool Rapids — about a mile and a quarter — this section is about 
•J miles below Niagara Falls, and has no more to do with the scenic 
beauty of the Falls than the Potomac River here. But the law 
provides that only so much can be diverted from the river. Un- 
questionably it was intended that the limitation should l^e placed u])on 
the river above the Falls, but it was not. I can not conceive 
that the Members of Congress voting for the bill at that time com- 
prehended the fact that they were regulating water that had noth- 
ing to do with scenic beauty. The bill itself was entitled. "An act 
for tlie preservation of Niagara Falls." and this section of the river 
had nothing whatever to do with it. The bill I have introduced 
is merely for the purpose of perfecting the treaty. In brief, it 
enlarges the powers of the Secretary of War and raises the limita- 
tion against the importation of ]:)Ower from Canada. Under the 
existing law we can only bring over 160.000 horse])ower. whereas if 
this bill is enacted we can bring over all that we can ^et. 

The Chairman. Quite true, and any limitation is conducive to 
monopoly, is it not ? 

Mr. Sim:\ions. Yes; within the treaty. I do not think there should 
be any limitation whatever. That was only ])ut in the law tempo- 
rarily until we could negotiate with (Jreat Britain, and we have had 
that negotiation. 

Mr. Flood. We bring over 160.000 horsepower. AVho brings that 
over now ? 

Mr. Simmons. The Niagara Falls Power (^o. and the Niagara, 
Lock])ort & Ontario Co. The present law limits the diversion of 
water in the Niagara River. The treaty states that the Avater affected 
is the water above the Falls and therefcn-e it leaves the situation open 
as to the lower river, and if it is desired later that ])ermission should 
l)e given to take water in the lower river. Congress could have it done. 
T can not conceive of anything in connection Avith the original bill 
which was so imjustified as to have prevented a development in some 
other place. Avhen the object sought to be (obtained Avas the preserva- 
tion of Niagara Falls. 

I thank you very much for your kind attention. I should like to 
say more, but there are many others to be heard after me. 

A Mk:mbf,k. Does the public seiwice commission fix the ])rice of the 
power that the corporations take? Do they fix the priced Tliat is, 



PEESERVATION OF NIAGARA FALLS. 7 

do the power companies piay anything? Or is there any revenue com- 
ing to the State of New York or the General Goverjnnent ( 
Mr. Simmons. No; there is none. 

[H. R. 7694, Sixty-second Congi-fss. First Session.] 

A lUI.L To jjive (Effect to the (illth article of the treaty between the I'nited States and 
(ireat Britain si>;ned January 11, 1909. 

Be it enacted by the i^cnate and Hoii.se of Rcpr(senta1ire>< of the United i:itate3 
of America in Congress assembled, That no water shall be diverted from the 
Niagara River above the Falls of Niagara within the State of New York for 
power purposes without the written consent of the Secretary of War, who is 
hereby authorizetl to give snch consent by revocable j)erniits. to persons, com- 
panies, or corporations having authority from the said State to make such 
diversions, and to a total amount not exceeding in the aggregate the amount 
allowed by the treaty between the United States and (ireat Britain signed at 
Washington on the 11th day of .January, in the year lOOij: I'rorided, That no 
such permit shall be granted allowing diversions of water exceeding in the 
aggregate 15.600 cubic feet per second without the consent of the State of New 
York and of the commissioners on the part of the United States in tlie inter- 
national joint commission provided for bj- said treaty. 

Every diversion of water in violation of the foregoing provisions shall be a 
mi.'-demeanor. punishable by a tine not exceeding ,$2,5<X) or l>y imprisonment 
not exceeding one year, or both, in the discretion of the court. 

The Secretary of War shall make regtilations for preventing the diversion 
of water from the Niagara River above the Falls of Niagara in excess of the 
amounts consented to by him pursuant to the said treaty and to this act, and 
all permits for the diversion of water granted under the act entitled "An act for 
the control and regulation of the waters of Niagara River, for the preservation 
of Niagara Falls, and for other purposes," approved June 20, 1908, shall continue 
in force until revoked by the Secretary of War or superseiled by other i>ermits 
issued by him. 

The Chairman. The committee will now hear from Representative 
Charles B. Smith, who has a bill before the committee — No. 6746. 
The Smith bill reads as follows: 

in. H. 0740, Sixty-second Conjin^ss. tirst session.] 

.V EILL To give eftect ti) the fifth article of the treaty between the United States and 
Cauad.i, signed January 11, 1909. 

Be it enacted by the Senate and House of Representatires of tlie United 
States of America in Congress assembled, That no water shall be diverted 
from Niagara River above the Falls of Niagara, within the State of New York, 
for power purposes without the written consent of the Secretary of War, who 
is hereby authorized to consent, by revocable permits, to the making of such 
diversions to a total amoimt not exceeding in the aggregate the amount allowed 
by the treaty between the the United States and Great Britain of January 11, 
1909: Provided, That all permits for the diversion of water granted under the 
act entitled "An act for the control and regulation of the waters of Niagara 
River, for the preservation of Niagara Falls, and for other purposes, approved 
June 29, 1906," shall continue in force and effect to the recipients thereof and 
their respective successors until revokeil by the Secretarj- of AVar or superseded 
by other permits issued by him: Provided further, That any permit for such 
diversion of water in excess of a daily diversion at the rate of 15,600 cubic 
feet of water iier second shall only be made to the State of New York, with 
full power and authority to said State to make such grant or grants of the 
use thereof as it may determine to be for the public interest: Provided further. 
That no one individual, company, or coi-poration shall be permitted to divert 
\mder any permit or permits granted under the authority of said act of June 
29, 1906, water exceeding in the aggregate a daily diversion at the rate of 
8,600 cubic feet per second. 

Sec. 2. That no person, company, or corporation shall transmit from the 
Dominion of Canada into the Unitetl States electrical power developed from 
the use of the waters of the Niagara River in excess of the amount so trans- 



S PKESERVATIO^• OF .MAGAKA iALl.S. 

initted by such person, coiupauy, or corporation on or before May 13, 1910, the 
date of proclamation of said treaty, without the written consent of the Sec- 
retary of War. who is hereby authorized to give consent for such transmission 
of additional electrical power by revocable permit, to contain an express con- 
dition that the person, company, or corporation receiving or operating under 
such permit shall not directly or indire<^'tly, tluo\igh any subsidiary company or 
otherwise, charge or receive for any such additional electrical power so trans- 
mitted within the United States a higher price than is charged or received by 
such person, company, or corporation, or any allied or subsidiary company, 
under like or substantially similar circumstances, within the Dominion of 
Canada for electrical jiower developed froiii said waters, and that such condi- 
tion in respect of i trice shall be by the terms of such permit made specifically 
enforceable in and by any State within which such electrical power so developed 
within the Doniinun of Canada shall be transmitted. 

Sec. 3. That any i)erson, comjiany, or coi'poration diverting water from the 
said Niagara River or its tributaries, or transmitting electrical power into the 
United States from Canada, except as herein stated, or violating any of the 
provisions of this act, shall be deemed guilty of a misdemeanor, and on con- 
viction thereof shall be punished by a fine not exceeding $2, 500 nor less than 
^500. or by imprisonment (in the case of a natural person) not exceeding one 
year, or by both such punishments, in the discretion of the court: Provided, 
That the removal of any structures or parts of structures erected in violation 
of this act, or any construction incidental to or used for such diversion of 
water or transmission of i)ower as is herein prohibited, as well as any diver- 
sion of water or transmission of power in violation hereof, may be enforced or 
enjoined at the suit of the United States by any circuit court having jurisdic- 
tion in any district in which the same may be located, and proper proceedings 
to this end may be instituted under the direction of the Attorney General of 
the United States. 

Sic. 4. That tl!o.i)n)visi()i!s (if lliis act .-^hall reuiiiiu in force and effect during 
the life of said treaty. 

Sec. 5. That for accomi)lishiug the purposes detailed in this act the sum of 
$10,000, or so much thereof as may be ni'Cessary, is hereby appropriated from 
any moneys in the Treasury not otherwise appropriated. 

Sec. 6. That the right to alter, amend, or repeal this act is hereby expressly 
reserved. 

Mr. SiiAiu'. Mr. Sniitl). has the nnioiint of the diversion been fixed 
bv a treaty? 

My. SMrrH. Yes. sir; it is 20,000 feet on the American side and 
36,000 feet on the Canadian side. 

Mr. Sn.ARP. Now. has there been some leofishttion by this (70\ern- 
ment ? 

]\rr. S^riTH. That legisUition was prior to the establishment of the 
treaty. I -want to say, Mr. Chairman, that I do not desire to go 
into the merits of the legisLttion now. My main piir]K)se in address- 
ing the committee was to place in the record the Burton Act and also 
the treaty with Great Britain. 

The Chatijman. There being no objection, the rep"iter will incor- 
porate in the record the treaty between the United States and (h-eat 
Britain and the Burton Act and the resolution extending the same. 
the joint resolution of the House, No. 262. approved March :'>. 1909. 

THE BUKTOX LAW. . 
U'ulilio. \<). :{c>7.| 

An .\ct For lln- cuiitrol .-inii r.';,'iil;ition iu' ti)o w.-ilcrs of .\iay::n-:i lUvor. for tlic pn-stTv.-i- 
v:ifion of Ninjiarn K.-ills. nnrl for other purposes. 

Br it rwnctrd hji the Sciiatr and Jlnuf>c of Rrinoirntdtircfi of the Vnitcd 
>^t(itcs of Amehcn hi Conrirriist aftsrnihlrd. That the diversion of watei- from 
Niagara River or its tributaries, iu the State of New Yorlc. is hereby prohibited, 
except with the consent of the Stx-retary of War as hereinafter autlKuized in 
section two of this act: Proridcd, That this prohibition shall not be interpreted 



PRESERVATION OF NIAGARA FALLS. 9 

as forbidding tlie diversion of the waters of the Great Lalves or of Niagara 
River for sanitary or domestic purposes, or for navigation, the amount of which 
may be fixed from time to time by the Congress of the United States, or by the 
Secretary of War of the United States under its direction. 

Sec. 2. That the Secretary of War hereby authorized to grant permits for 
the diversion of water in tlic United States from said Niagara River or its 
tributaries for the creation of power to individuals, companies, or corporations 
which are now actually itroducing power from the waters of said river, or its 
tributaries, in the State of New York, ov from the Erie Canal; also permits for 
the transmission of power from the Dominion of C'anadainto the United States, 
to companies legally authorizeil tlierefor. botli for diversion and transmission, 
as hereinafter stated, but permits for diversion shall l)e issued only to the indi- 
viduals, companies, or corporations as aforesaid, and only to the amount now 
actually in use or contracted to be used in factories the buildings for which 
are now in process of construction, not exceeding to any one individual, com- 
pany, or corporation as aforesaid a maximum amount of eight tliousand six 
hundred cubic feet per second, and not exceeding to all individuals, companies,^ 
or corporations as aforesaid an aggregate amount of tifteen thousand six hun- 
dred cubic feet per second; but no revocable permits shall be issued by the said 
Secretary under the provisions hereafter set forth for the diversion of addi- 
tional amounts of water from tlie said river or its tributaries until the approxi- 
mate amount for which permits may be issued as above, to wit, fifteen tliou- 
sand six hundred cubic feet per second, shall for a iteriod of not less than six 
months have been diverted from the waters of said river or its tributaries, iu 
the State of New Yorlv : Proridcd. That the said Secretary, subject to the pro- 
visions of section five of this act, under tlie limitations relating to time above 
set forth, is hereby authorized to grant revocable iiermits, from time to time, to 
such individuals, companies, or corporations, or their assigns, for the diversiout 
of additional amounts of water from the said river or its tributaries to such 
amount, of any. as, in connection with the amount diverted on tlie Canadiau 
side, shall not injure or interfere with the navigable capacity of said river, or 
its integrity and proper volume as a boundary stream, or the scenic grandeur of 
Niagara P^alls; and that the quantity of electrical power wliich may by permits 
be allowed to be transmitted from the Dominion of Canada into the United 
States shall be one hundred and sixty thousand horsepower: Provided further. 
That the Secretary, subject to tlie provisions of section five of this act, may 
issue revocable permits for tlie transmission of additional electrical power so 
generated in Canada, but in no event shall the amount included in such per- 
mits, together with the said one hundred and sixty thousand horsepower and 
the amount generated and used in Canada, exceed three liuudred and fifty 
thousand horsepower: Provided iilirays. That the provisions herein i)ermitting 
diversions and fixing the aggregate horsepower herein permitted to be trans- 
mitted into the United States, as aforesaid, are intended as a limitation on tlie 
authority of the Secretary of War, and shall in no wise be construed as a direc- 
tion to said Secretary to issue permits, and the Secretary of War shall make 
regulations preventing or limiting the diversion of water and the admission of 
electrical jiower as lierein stated; and the permits for the transmission of elec- 
trical power issued by tlu» Secretary of War may specify the persons, com- 
panies, or corporations i)y wliom the same shall be transmitted, and the persons, 
companies, or corporations to whom the same shall be delivered. 

Si;('. 3. That any person, company, or corpoi-atiou diverting water from the 
said Niagara River or its tributaries, or transmitting electrical power into the 
United States from Canada, except as herein stated, or violating any of tlie 
provisions of tliis act. shall be deemed guilty of a misdemeanor, and on con- 
viction tliereof shall be punished by a tine not exceeding two thousand five 
luiudrcd dollars nor less than five liundred dollars, or by imprisonment (in 
the case of a natural person) not exceeding one year, or by both such punish- 
ments, iu the discretion of the court. And, further, the removal of any struc- 
tures or parts of sti-uctuies erected in violation of this act. or any construction 
incidental to or used for such diversion of water or transmission of power as is 
liereln luvhibited. as well as any diversion of water or ti-ansmission of power 
in violation hereof, may i»e enforced or enjoined at tlie suit of the United States 
by any circuit court baving jurisdiction in any district in which the same may 
be located, and proper proceedings to tliis end may be instituted under the di- 
rection of tlie Attorney (Jeiieral of the United States. 

Sf.c. 4. That the President of tlie United States is respectfully requested to- 
open negotiations with the Government of Great Britain for the purpose of 



10 PRESERVATION OF NIAGxVRA FALLS. 

effectually providing by suitable treaty with said (iovevunient. ff»r such regula- 
tion and control of the waters of Niagara Kiver and its tril>utaries as will pre- 
serve the scenic giandeur of Niagara Falls and of the rapids in said river. 

Sec. f). That tht- provisions of this act shall remain in force for three years 
from and after date of its passage, at the exiiiration of which time all permits 
granted hereunder by the Secretary of War shall terminate unless sooner re- 
voked, and the Secretary of War is hereby authorized to revoke any or all 
permits granted by him by authority of this act, and nothing herein contained 
shall be held to confirm, establish, or confer any rights heret»)fore claimed 
or exercised in the diversion of water or the transmission of power. 

Sec 0. That for accomplishing the purposes detailed in this act the sum of 
fifty thousand dollars, or so much thereof as may be necessary, is hereby appro- 
priated from any moneys in the Treasury not otherwise appropriated. 

Sec. 7. That the right to alter, amend, or repeal this act is hereby expressly 
reserved. 

Approved, June 20. llX)(j. 



House joint resolution lifil!. extrndiriR the operation of an act for the conti'ol and resu- 
lation of the watrrs of Nia;.';ua Iliver. for the prcstrvatiou of_ Niagara Falls, and for 
otiier purposes. 

Whereas the [irov isit/iis of ihe :\v\ cntitkHl "An aet for the control and regu- 
lation of the waters of Niagara Itiver. for the preservation of Niagara Falls, 
and for other purposes." aiiproved .Tune twenty-ninth, nineteen hundred and six. 
will expire by limitation on .June twenty-iiinth, nineteen hundred and nine; and 

Where;; s a date foi" the termination of the operation of said act was pro- 
vided therein, but with a view to the more iiernijinent settlement of the ques- 
tions involved by a treaty with Great Britain, and by further legislation appro- 
priate to the situation, and such treaty not having been negotiated, it is de- 
sirable that the lu-ovisioiis of said act should be continued until such permanent 
settlement cjui be made: Therefore, be it 

Rcsdired. etc.. That the i>rovisi(ins of the aforesaid act be, and they are 
hereby, extended for two ye;irs fioni .Tune twenty-ninth, nineteen hundred and 
nine, being the date df the expiration of the ojieration of said act. save in so 
far as any portion thereof may be found inapplicable or already complied with. 

Appro vetl. March 3. 1909. 



TREATY SKiUES. XO. .■.4s — TKEATV BETWEEN THE t^MTEU STATES AND GREAT BRITAIN 

norXr.ARY waters I!.KTWEEN the united states AND CANADA. 

Signed at Washiuglon .January IL 1909. 
I{atification advised by the Senate Maivh 3, 1909. 
Itatified by the I'resident April 1. 1910. 
Ratified by Great lirit.iin Mnrch 31. 1910. 
liatificiitions exchanged at Washington May 5. 1910. 
Proclaimed May 13. 1910. 

1;Y llii: I'KESJIiENP OE THE UNITED STATES OF AMERICA. 

A Proclamation. 

Whereas a treaty between the T'nited States of Ameriea and Tils .Majesty the 
King of the Tnite'd Kingdom of (ireat P>ritain and Ireland :ind of the P.ritish 
dominions beyon.l the seas. Emperor of India, to prevent disputes regarding 
the use of boundary waters and to settle all questions which are now pending 
betwe<'n the T'nited States and the Dominiim of Canada involving the rights, 
obligations, or interests of either in relation to the other or to the inhabitants 
of the other along their conunon frontier, and to m:'ke provision for the adjust- 
ment and settlement of all such questions as may hereafter arise, was concluded 
and signed by their resi)ective ]t]enii)otentiaries at Vv'ashington on the eleventh 
day of Januiiry. one thousand nine hundred and nine, the original of which 
treatv is, w<u'd for word, as follows: 

The United States of .\nieriea and His Majesty the King of the United ICing- 
dom of Great P.ritain and Ireland and of the British dominions beyond the 
sea.s. I':miteror of India, being equally desirous to prevent disputes regarding 
the use of boundarv waters and to settle all questions which are now pending 



PEESERVATION" OF NIAGARA F.ALLS. 11 

bet\Yeen the T'liitm! States ;n'.<,l the Doiniiiion i)f Cauafhi involving the rights, 
obligations, or interests of either in relation to tlie other or to the inhabitants 
of tiie other along their counnon frontier, and to make provision for the adjust- 
ment and settlement of all such qnestions ;'s may hereafter arise, have resolved 
to conclude a treaty in furtherance of these ends, and for that purpose have 
appointed as their respwtive plenipotentiaries: 

The President of the T'nited States of America. Elihu Hoot. Secretary of 
State of the United States: and 

His I5ritaiuiic Majesty, the liight Honorable James Bryce, O. ?d.. his ambas- 
sador extraordinary and plenipotentiary at Washington. 

Wlio. after having communicated to one another their full i)owers. found iu 
good and due form, have agree<l upon the following articles: 

Preliminary Article. 

For the purposes of this treaty boundary waters are defiued as the waters 
from main shore to main shore of the lakes and rivers and connecting water- 
ways or the portions thereof, along which the international boundary between 
the United States and the Dominion of Canada passes, including all bays, arms, 
and inlets thereof, but noi including tributary waters vrhich in rlie'i- natural 
channels would flow into such lakes, rivers, and waterways, or waters flowing 
from such lakes, rivers, and waterways, or the waters of rivers flowing across 
the boiuidary. 

AUTlCtE I. 

The high contracting parties agree that the navigation of all navigable bound- 
ar.v waters shall forever continue free and open for the purposes of commerce 
to the inhabitants and to the ships, vessels, and boats of both countries equally, 
subject, however, to any laws and regulations of either country, within its own 
territory, not inconsistent with .such privilege of free navigation and applying 
equally and without discrinunation to the inhabitants, ships, vessels, and boats 
of both countries. 

It is further agreed that so long as this treaty shall remain in force this 
same right of navigation shall extend to the waters of Lake ^Michigan and to all 
canals connecting b(uiudary waters and now existing or which may hereafter 
be constructed on either side of the line. Either of the high contracting parties 
may adopt rules and regul.itions governing the use of such canals within its 
own territory and may charge tolls for the use thereof, but all such rules and 
regulations ;ind all tolls charged shall apply alike to the subjects of citizens of 
the high contracting parties and the shijis. vessels, and boats of both of the 
high contracting parties, and they shall be placed on terms of equality in the 
use thereof. 

Article II. 

Each of the high contracting parties reserves to itself or to the several State 
governments on the one side and the Dominion or Provincial Governments on 
the other, as the case may be. subject to any treaty provisions now existing 
with respect thereto, the exclusive jurisdiction and control over the use and 
diversion, whether temporary or ])ermanent. of all waters on its own side of 
the line which in their natural channels would flow across the boundary or 
into boundary waters: but it is .-igreed that any interference with or diver- 
sion from their natural channel of such waters on either side of the boundary, 
resulting in any injury on the other side of the boundar.v, shall give rise to the 
same rights and entitle the injured parties to the same legal remedies as if 
such injury took place in the country where such diversion or interference 
occurs: but this provision shall not apply to cases already existing or to cases 
exjtressly covered by special agreement between the parties hereto. 

It is understood, however, that neither of the high contra.cting ijarties intends 
by the foregoing provision to surrender any right which it may have to object 
to any interference with or diversions of waters on the other side of the 
boundary the effect of which would be productive of material injury to the 
iiavig.ation interests on its own side of the boundary. 

Article III. 

It is agreed that, in addition to the uses, obstructions, and diversions hereto- 
fore permitte<l or hereafter provided for by special agreement between the parties 
hereto, no further or other uses or obstructions or diversions, whether temporary 



12 PRESERVATIOX OF XIAGAHA FALLS. 

or ppiiuMiient. of hnuiidnry waters on either side of the line, affecting the 
natural level or tlow of bonndary waters on tlie other side of the line. "shall 
be made excei)t by authority of the United States or the Dominion of Canada 
within their respective jurisdictions and with the approval, as hereinafter 
]»rovided. of a joint conunission. to be known as the International .Joint Com- 
mission. 

The foreKoiuj; provisions are not intended to limit or interfere with the 
existing rights of the Government of the United States on the one side and 
the Government of the Dominion of Canada on the other, to undertake and 
carry on governmental works in boundary waters for the deepening of chan- 
nels, the construction of breakwaters, the improvement of harbors, and other 
governmental works for the benefit of commerce and navigation, provided that 
such works are wholly on its own side of the line and do not materially affect 
the level or flow f)f the boundary waters on the other, nor are such provisions 
intended to interfere with the ordinary use of such waters for domestic and 
sanitary purposes. 

Article IV. 

The high contracting parties agree that, except in cases provided for Iiy 
special agreement between them, they will not permit the construction or main- 
tenance on their respective sides of the boundary of any remedial or jirotective 
works or any dams or other obstructions in waters "flowing from boundary 
waters or in waters at a lower level than the boundary in rivers flowing 
across the boundary, the effect of which is to raise the natural level of waters 
on the other side of the boundary unless the construction or maintonano 
thereof is appi-oved by the aforesaid International .Joint Commission. 

It is furtlier agreed that the waters herein defined as boundary waters and 
waters flowing across the boundary shall not be polluted on either side to the 
injury of health or property on the other. 

Article V. 

The high contracting parties agree that it is expedient to limit the diver- 
sion of waters from thei Niagara River so that the level of Lake Erie an<l the 
flow of the stream shall not be appreciably affected. It is the desire of both 
Xiarties to accomplish this object with the least possible injury to investments 
which have already been made in the construction of power plants on the 
Unitefl States side of the river under grants of authority from the State of 
New York, and on the Canadian side of the river under licenses authorized by 
the Dominion of Canada and the Province of Ontario. 

So long as this treaty shall remain in force no diversion of the waters of 
the Niagara River above the Falls from the natural course and stream (hereof 
shall be permitted except for the pin-poscs and to the extent hei-cinaftei' pro- 
vided. 

The United States may authorize .md permit the diversion within the State 
nf New York of the waters of said river above the Falls of Niagara, for j)ower 
purposes, not exceeding in the aggregate a daily diversion at the rate of twenty 
thousand cubic feet of water per second. 

The Ignited Kingdom, by the Dominion of Canada, or the Province nf Onta- 
rio, may authorize and permit the diversion within the Province of Ontario of 
the waters of said river above the Falls of Niagara, for power pur])ost>s. not 
exceeding in the aggregate a daily diversion at the rate of thirty-six t lioiisainl 
cubic feet of water i)er second. 

The prohibitions of this article shall not ajtply to the diversion of water for 
sanitary or domestic* purposes, or for the service of canals for tlie i)iirj><)ses of 
navigation. 

Akticle VI. 

The high contracting jiarties agree that the Saint :XIary and ?.Iilk Rivers and 
Iheir tributaries (in the State of Montana and the Provinces of Alberta and 
Saskatchewan) are to be treated as one stream for the purp«^ses of irrigation 
and power, and the waters thereof shall be apportioned equally heiwe(>n tlie< 
two countries, but in niakinrr such e(pial apportionment, more than lialf may- 
be taken frcnn one river and less than half from the other by either country 
so as to afford a more beneficial use to each. It is further agreed tiiat in the 
division of such waters during the irrigation season, between the first (^f April 



PKESEliVATlON OF XIAGAKA FALLS. 13 

nnd tbirty-tirst of October, inclusive, annually, tbe TJnited States is entitled to 
a prior apiiropriation of five buntlred cubic feet per second of the waters of the 
Milk River, or so much of such amount as constitutes three-fourths of Its nat- 
ural flow, and that Canada is entitled to a prior appropriation of five hundred 
cubic feet per second of the flow of Saint Mary River, or so much of such 
amount as constitutes three-fourths of its natural flow. 

The channel of the Milk River in Canada may be used at the convenience 
of the United States for the conveyance, while passing through Canadian terri- 
tory, of waters diverted from the Saint Mary River. The provisions of Article II 
of this treaty shall apply to any injni'y resulting to property in Canada from 
the conveyance of such waters through the Milk River. 

The measurement and apportionment of the water to be used by each country 
shall from time to time be made jointly by the properly constituted reclama- 
tion oflicers of the United States and the properly constituted irrigation otTicers 
of His Majesty under the direction of the International Joint Commission. 

Abticle VII. 

The high contracting parties agree to establish and maintain an International 
Joint Commission of the United States and Canada composed of six commis- 
sioners, three on the part of the United States appointed by the President 
thereof, and three on the part of the United Kingdom appointe<l by His Majesty 
on the recommendation of the Governor in Council of the Dominion of Canada. 

Article VIII. 

This Internatio)ial Joint Commission shall have jurisdiction over and shall 
pass upon all cases involving the use or obstruction or diversion of the waters 
with respect to which, under Articles III and IV of this treaty, the approval of 
this commission is required, and in passing upon such cases the commission shall 
be governed by the following rules or principles which ai*e adopted by the high 
contracting parties for this purpose: 

The high contracting parties shall have, each on its own side of the boundary, 
equal and similar rights in the use of the waters hereinbefore defined as 
boimdary waters. 

The following order of precedence shall be observed among the various uses 
enumerated hereiiiefter for these waters, and no use shall be permitted which 
tends materially to conflict with or restrain any other use which is given pref- 
erence over it in this order of precedence: 

First. Uses for domestic and sanitary purposes. 

Second. Uses for navigation, including the service of canals for the pur])oses 
of navigation. 

Third. Uses for power and for irrigation purposes. 

The foregoing provisions shall not apply to or disturb any existing uses of 
boundary waters on either side of the boundary. 

The requirement for an equal division may, in the discretion of the commis- 
sion, be suspended in cases of temporary diversions along boundary waters at 
points where such equal division can not be made advantageously on account of 
local conditions and where such diversion does not diminish elsewhere the 
amount available for use on the other side. 

The commission in its discretion may make its approval in any case condi- 
tional upon the construction of remedial or protective works to compensate so 
far as possible for the particular use or diversion proposed, and in such cases 
may require that suitable and adequate provision, approved by the commission, 
be made for the protection and indemnity against injury of any interests on 
either side of the boundary. 

In cases involving the elevation of the natural level of waters on either side 
of the line as a result of the construction or maintenance on the other side of 
reme<Iial or protective works or dams or other obstructions in boundary waters 
or in waters flowing therefrom or in waters below the boundary in rivers flowing 
Hcoss the boundary, the commission shall require, as a condition of its approval 
thereof, that suitable and adequate provision, approved by it, be made for the 
protection and indemnity of all interests on the other side of the line which may 
be injured thereby. 

The majority of the commissioners shall have power to render a decision. In 
case the commission is evenly divided upon any question or matter presented 

28305—12 2 



14 FRRSKRVATIOX OF NIAGARA F.VLLS. 

• 
to it for derision, separate rei)f>rts shall be made by the eoniniissinuers on each, 
side to their own (lovernnient. The high oontractinj; parties shall thereupon 
endeavor to ajrree upon an adjustment of the question or matter (tf difference, 
and if an agreement is reached between them it shall be reduced to writinir 
in the form of a protocol, and shall be communicated to the conunissioners. who 
shall take such further proceedings as may be necessary to carry out such 
agreement. 

Ainicrj; IX. 

The high i-ontracting i)arties further agree Ihat any other questioMs or mat- 
ters of difference arising between them involving the rights, obligations, or 
interests of either in i-elation to the other or to the inhal>itants of ti)e other, 
along the conunon frontier between the Tnited States and the Dominion of Can- 
ada, shall be referred from time to time to the international joint commis.sioji 
for examination and report, whenever either the (lovernment of the T'nited 
States or the Government of the r)ominion of Canada shall request that such 
questions or matters of difference be so referred. 

The international joint conunission is authorized in each case so rc-fci'vcd to 
examine into and report upon the f.acts and cin.'u.mstances of the partifuhiv 
questions and matters refern-d. together with sijch crmclusions and recommenda- 
tions as may be apjtropriate. subject, however, to any restrictions oi- .exce]*- 
tions which may be imposed with respect thereto l)y the terms of the reference. 

Such reports of the connuissioiis shall not Ite regarded as decisions of the 
questions or matters so sultmitted either on the facts or the law. and shall in 
uo way have the character of an arl)itral award. 

..The' conunission shall make a joint report to both Cnverinneuts in all cases 
in which all or a. majority of the commissioners agree, and in case of disa.irree- 
pient the minority may make a joint report to both Governments or sejtarate. 
reports to their res))ective Governments. 

In case the commission is evenly divided upon ;niy question or tuattcr ro-. 
ferred to it for report, separate rejiorts shall be made by the connnissioncrs on 
each side to their own Govermnent. 

.\uri( IK X. 

Any questions or matters of difference arising betwccMi the high contracting 
parties involving the rights, obligations, or interests of the I'liited States or of 
the Dominion of Canada either in relation to each other or to their respective 
inhabitants, may be referred for decision to the international joint conunission 
by the consent of the two parties, it being imderstood that on the part of the 
United States any such action will be by and with the advice and consent of 
the Senate, and on the i>art of His Majestys (Joverninent with the consent <rf 
the Goveriior General in Council. In e.ich case so referred the said conunis- 
sion is authorized to examine into and report upon the facts and circumstances 
of the iiarticular questions and matters referred, together with such concln- 
sions and reconunendations as may l)e apiiropriate. subject, however. t(,) any 
restrictions or exceptions which may be imjiosed with lespect thereto by the 
terms of the reference. 

A majority of the said commission shall have ])ower to reudci- a decision or 
finding upon" any of the ipiestions or matters so referrwl. 

If the said conunission is eqtially divided or otherwise unable to render ;i 
decision or findiniv is to any questions or matters so referred, it shall bt> the 
duty of the cominissioneis so make a joint rejiort to both <4overnmeiUs. or 
separate rei)orts to their respective (rovennnents. showing the different c«m- 
clusions arrived at with regard to the matters or questions so referred, whicli 
questions or matters shall thereuiion be referred for decision by the high con- 
tracting ]>arties to an nmi)ire chosen in accordance with the procedure pre- 
scribed in the fourth, fifth, and sixtli para.irraphs of Artich> XI, V of The Hague 
Convention fm- the pacific s<>ttlement <.f intern.itional disjiules. dated Octolver 
eighteenth, nineletvi hundred and seven. Such nmi)ire shall have power to 
render a final decision with resixvt to those matters and questions so referred 
on which the commission failed. 



PRESERVATION OF NIAGARA FALLS. 15 

Ainu'i.ii XI. 

A fhiplictite oriiriii.-i] of ;ill decisions rciulored and Joint n^iiorts made by the 
conmiission shall he transmitted to and tiled with tlie Secretary of State of the 
United States and the Governor (Jeneral of the Dominion of <'ana(hi. and to 
them shall he addressed all connminications of tlie conunissions. 

Article XII. 

Tlie international joint connnission shall meet and orixanize at Washinirtoii 
promptly after the members thereof are appointed, and when organized the 
connnission may ttx such times and places for its meetings as may be necessary, 
subject at all times to sjjecial call or directi(m by the two (Jovernments. ICaeh 
commissioner, upon the first joint meeting of the commission after Ins appoint- 
ment, shall, before proceeding with the work of the commission, make and 
subscribe a solenni declaration in writing that he will faithfully and impar- 
tially perform tlie duties iniiK)sed upon him under this treaty, and such declara- 
tion shall be entered on the records of tlie proceedings of tlie commission. 

Tlie T'nited States and Canadian sections of the commission may each appoint 
ji secretary, and these sliall act as joint secretaries of the commission at its 
joint sessions, and the commission may employ engineers and clerical assistants 
from time to time as it may deem advisable. The salaries and personal ex- 
l)enses of the commission and of the secretaries shall be paid liy their res[)ective 
Governments, and all n>asonable and necessary joint exiienses of the commission 
incurred by it shall be iiaid in ecpnil moieties by the high contracting parties. 

The commission shall have power to administer oaths to witnesses, and to 
take evidence on oath whenever deemed necessary in any pnjceeding, or inyuiry, 
or matter within its jurisdiction under this treaty, and all i)arties interested 
therein shall be given convenient opportunity to be heard, and the high con- 
tracting parties agree to adoi)t such legislation as may he approiiriate and 
necessary to give the commission the powers above mentioned on each side of 
the boundary, and to provide for the issue of subpcenas and for compelling 
tlie attendance of witnesses in proceedings l)efore the commission. The commis- 
sion may adopt such rules of- procedure as shall be in accordance with justice 
and equity and may make such examination in jierson and through agents or 
enijiloyees as may he deemed advisable. 

Ainici.K Xlll. 

' In all cases where special agreements between the high contracting parties 
hereto are referred to in the foregoing articles, such agreemenrs are under- 
stood and intended to inclmle not only direct agreements between the high 
contracting ijarties. but also any mutual arrangement between the United States 
and the Dominion of Canada expressed by concurrent or reciprocal legislation 
on the part of Congress and the Parliament of the Dominion. 

Article XIV. 

The i>resent treaty shall be ratitied by the President of the United vStates of 
America, by and with the advice and consent of the Senate thereof, and by His 
Britannic ^Majesty. The ratifications shall be exchanged at Washington as 
.soon as possible and the treaty shall take effect on the date of the exchange of 
its ratifications. It shall remain in force for five years, dating from the day 
of exchange of ratifications, and thereafter until terminated by twelve mouth's 
written notice given by either high contracting party to the other. 

In faitli whereof the resiiective plenipotentiaries have signed this treaty in 
duplicate and have hereunto alttxed their seals. 

Done at Washington the eleventh day of January, in the year of our Lord 
nineteen hundred and nine. 

(Signed* ICliiiu Root. | seal. 1 

( Signed I J.Imks Hryce. Jseal.I 

And whereas the Senate of the I nited States by their resolution of March 
third, nineteen hundred and nine t two-thirds of the Senators jire-sent concurring 
tiiei:ein), did advise and consent to the ratification of the said treaty with the 
following understanding to wit: 

Refiolved further {as a part of thin ratiJivatioH) , That the United States 
approves? this treaty with the understanding that nothing in this treaty shall he 



16 PRESERVATION OF NIAGARA FALLS. 

construed as affef-tiufr or ehaiiKinfi any existing territorial or riparian risiits 
in the water, or ri^rhts of the owners of lands under water, on either side of the 
international boundary at the rapids of the Saint Marys Kiver at Sanlt Sainie 
Marie, in the use of the waters flowinj; over such lands, subject to the require- 
ments of navifration in boundary waters, and of navij;ation canals, and with- 
out i>rejndice to the existinji right of the United States and Canada, each to 
use the waters of the Saint Marys Kiver withui its own territory; and further, 
that nothing in this treaty shall be construed to interfere with the drainage of 
wet. swamp, and overflowed lands into streams flowing into boundary watei's, 
and that this interi)retation will be mentioned in the ratification of this treaty 
as conveying the true meaning of the ti-eaty, and will, in effect, form part of 
the treaty. 

And whereas the said understanding has been accepted by the Government of 
Great Britain, and the ratifications of the two Governments of the s;iid treaty 
were exchanged in the city of Washington on the fifth day of May, one thousand 
nine hundred and ten ; 

Tsow, therefore, be it known that I, William Howard Taft, President of the 
United States of America, have caused the said treaty and the said understand- 
ing, as forming a part thereof, to be made public, to the end that the same and 
every article and clause thereof may be observed and fulfilled with gootl faith 
by the United States and the citizens thereof. 

In testimony whereof I have hereunto set my hand and caused the seal of the 
United States to be affixed. 

Done at the city of Washington this thirteenth day of May, in the year of our 
Lord nineteen humlred and ten. and of the independence of the United States of 
America the one hundretl and thirty-fourth. 

[seal.] Wm. H. Tafx. 

By the President : 
P. C. Knox, 

Secretary of State. 

Pbotocol of Exchange:. 

On proceeding to the exchange of the ratifications of the treaty signed at 
Washington on January eleventh, nineteen hundred and nine, between the 
United States and Great Britain, relating to boundary waters and questions 
arising along the boundary between the United States and the Dominion of 
Canada, the undersigned plenipotentiaries, duly authorized thereto by their 
respective Governments, hereby declare that nothing in this treaty shall be 
construed as affecting, or changing, any existing territorial or riparian rights in 
the water, or rights of the owners of lands under water, on either side of the 
international boundary at the rapids of the Saint Marys River at Sault Sainte 
Marie, in the use of the waters flowing over such lands, subject to the require- 
ments of navigation in boundary waters and of navigation canals, and without 
prejudice to the existing right of the United States and Canada, each to use the 
waters of the Saint Marys River, within its own territory ; and further, that 
nothing in this treaty shall be construed to interfere with the drainage of wet, 
swamp, and overflowed lands into streams flowing into boundary waters, and 
also that this declaration shall be deemed to have equal force and effect as the 
treaty itself and to form an integral part thereto. 

The exchange of ratifications then took place in the usual form. 

In witness whereof they have signed the present protocol of exchange and 
have affixed their seals thereto. 

Done at Washington this fifth day of May, nineteen hundred and ten. 

Philander C. Knox, [seal.1 
James Bryce. [seal.] 

The Chairman. The committee will now hear from Mr. Driscoll. 
of Buffalo, N. Y. 

Mr. Driscoll. I shall not take up more than a minute or two of 
your time. I realize that you mean to give both bills a great deal 
of your valuable time. In my judgment, both bills are good bills. 
I come from the city of Buffalo, and you all know that the city of 
Buffalo is located about 22 miles from Niagara Falls ; and the people 



PRESERVATION OF NIAGARA FALLS, 17 

there and in the surrounding country have but two objects in view, 
and that is to get more power and cheaper power, and I think that 
they shouhl have cheaper power rates. I listened to my colleague 
and I think he has made a very fair statement. 

Mr. Kendall. Have the people no concern about the preservation 
of the Falls? 

Mr. DifiscoLL. As far as the preservation of the Falls is concerned, 
the question before your committee is whether or not the diversion 
of the 4,400 cubic feet of water per second that is allowed under 
this treaty, and which is not at present being used, will in any Avay 
harm the scenic beauty of Niagara Falls. In my judgment, not in 
the slightest degree. 

The Chairman. The treaty provides for 56,000 cubic feet per 
second. 

^[y. Driscoll. AVe have no jurisdiction over that. All we have 
jurisdiction over would be the 15,600 cubic feet per second that is 
now being used and the 4,400 feet additional that is not being used. 

Mr. Cooper. How^ much would it be in the aggregate? 

Mr. Driscoll. Twenty thousand on the American side. The limi- 
tations that have been placed upon the waters of Niagara Eiver 
should be released. That is, I do not believe that it was the inten- 
tion of the law^ to control the Avaters below" Niagara Falls, where I 
understand there is a drop of some eighty odd feet. If that water 
should be used for power purposes in the lower Niagara it would be 
a great benefit to the people, and it would not impair in any Avay 
the scenic beauty of Niagara Falls. I do say, gentlemen, that when 
your committee present the bill it should, in my judgment, be one 
so perfect that it would not be necessary for Congress to cross a "' t " 
or dot an " i " in its amendment. 

The Chairman. But how can we do that? 

]\lr. Driscoll. I am going to leave that to the chairman and the 
gentlemen of the committee. I loiow that it is a veiy difficult propo- 
sition. I full}^ agree with Mr. Simmons that this is one of the 
greatest questions that will ever come before this committee affecting 
power regulation. I believe there should be some law in this country 
regulating the maximum and minimum cost of powder. We have 
been told that there is 160,000 horsepower coming in from Canada. 
I can not find any reason why we should not have more power if we 
have the market to develop it. 

Mr. Flood. But do you think that the price to the consumer should 
be limited ? 

Mr. Driscoll. Absolutely. I thank you, gentlemen, very kindly. 
There are several gentlemen here, including representatives of the 
chamber of commerce of the city of Buffalo. They have been 
spending a good deal of time here and I hope they will be heard. 

Mr. Si:mmons. I would just like to ask one question. Do you 
think the public-service commission would safeguard that proposition 
in the city of New York ? 

Mr. Driscoll. That I can not answer, gentlemen ; that is quite 
another proposition. 

The Chairman. The committee will now hear from Representative 
Doremus. of Michigan. 



18 PEESERVATION OF NIAGARA FALLS. 

Mr. DoREsius. Mr. Chairman and gentlemen of this committee, 
I think you all miderstand that perhaps no city is more deeply 
interested in this question than Detroit. We have pending at the 
present time a street car settlement that will be voted on by the 
people next Tuesday. That settlement carries with it the ques- 
tion of embarking in the municipal ownership of street railways. 
If they decide to operate the street railway system now or at a 
later period they might be interested in getting this cheaper i)()wer. 
"We have in Detroit a municipal lighting plant 

Mr. Levy. What is the distance from Detroit to Niagara ( 

Mr. DoREMUs. I do not know, but I Avould say, offhand, 300 miles. 

A Member. Two hundred and twenty-five. 

Mr. DoREMt's. The ccmstitution of the State of Michigan gives the 
city the power to engage in private lighting. There again you will 
see the interest which the people of Detroit have in this proposition. 
Our manufacturers would like to get cheaper poAver and the citizens 
of Detroit would naturally like to get cheaper lighting. Under the 
Burton Act, as I understand it, it is absolutely impossible for them 
to get this power from Niagara Falls. A private corporation has a 
contract at this time for 25,000 horsepower Avith the hydroelectric 
commission of Canada, but Mr. Monaghan. Avho is to appear before 
this committee, is on his wa}' here now, and he will tell you about 
that. I understand his train has been delayed, but he will be here 
some time this forenoon. AVhile we are deeply interested and Avant 
to utilize a portion of this power, we are also interested in seeing 
some sort of regulation over the prices charged the consumers in 
Detroit. I do not think it should be left in the power of any cor- 
poration to exact exorbitant prices from the people of Detroit or any 
other city. I merely Avish to make a suggestion. I think this is a 
matter over Avhich the Federal Government has exclusive conti'ol. 
Certainly if we have the right to exclude this poAver from Canada 
entirely, we have the right to regulate the price; and it occurred to 
me that it might be a good idea to place this entire matter in the 
hands of the Interstate Commerce Commissi<m. They could have the 
same authority over these rates that they exercise over the railroad 
rates. I think that aa^III be satisfactory to the people of Detroit. 
So, in brief, we are interested in being in a position to import this 
poAA'er, and also to safeguard the citizens of Detroit Avho may use it. 

The Ch.mraiax. As I understand it, the city of Detroit has a nui- 
nicipal lighting plant and a contract Avith the Ontario Power Co. 
to furnish poAvei", etc. ? 

Mr. Bristol. No; that is the hydroelectric commission. Mr. Mon- 
aghan represents that. 

The Chairmax. And this companv intends lo >ell the power to 
the city? 

Mr. DoREMi s. They have a contract to sell -25.000 horsepoAver, 
and they intend noAv to extend the poAver to Windsor. I am assum- 
ing, gentlemen, that tlie treaty betAveen this country and (ireat Brit- 
ain accomplishes the purposes for Avhich it Avas made and that it does 
amply protect the scenic beauty of the Falls. 

A Member. What is the nearest place to Detroit ? 

Mr. Doremus. I am not prepared to ansAver that. I should have 
mentioned it, Mr. Chairman, but Ave have no public-service com- 



li 



PRESERVATION OF NIAGARA FALLS. 19 

mission in Michigan with power to reguhite prices charged the con- 
sumers of light and })ower. 

^Ir. iSiiAitP. Do you tliink it wouhl be competent for C(mgress to 
confer jurisdiction upon the Interstate Commei'ce Commission to 
determine the reasonableness of rates on power transmitted from 
Canada into this country? 

Mr. DoREMUs. I do not think there is any question about it, under 
our constitutional power, to regulate commerce between the States 
and foreign countries. 

^Ir. Flood. I notice in the Smith bill a provision tiiat no charge 
shall be made to individuals or munici])alities greater than in Can- 
ada. AVhat do you think of that? 

Mr. DoREMUs. I dt> not how that would operate in practice. The 
object of the Canadian Government is to furnish power from the 
Falls to Canadian cities at actual cost. Xow, if this power is to be 
used in Detroit through a private corporation it would be entitled 
to a fair return on the capital invested, which, of course, it could not 
obtain if required to furnish the power at cost. 

Mr. Cooper. Where can w'e get the specific information? 

Mr. DoREMLS. I think from the hydroelectric commission of Can- 
ada. 

Mr. Cooper. I mean, is there any official document in this country 
that will giA'e us that information? 

Mr. DoREMUs. I do not know. 

]Mr. Flood. You think, then, Mr. Doremus, it will take some more 
legislation than that indicated in the Smith bill? 

Air. DoRE-Airs. "^Miy, I judge that ought to be changed in some de- 
gree, although I have not given that particular feature much con- 
sideration. But I do think there should be some legislation, and the 
rates should be under the control of the Federal Government. 

Mr. CuRLEY. I was going to ask you if you could state the differ- 
ence in prices between the manufacturers of electric light in Detroit 
and that which would be made in consequence of this lighting 
scheme? 

Mr. DoREjrxs. The only thing I can say is what Mr. Monagban 
said, that they could furnish it for "20 per cent less than is now 
charged. 

Mr. CuRLEY. Would the private operating companies that are 
now doing the work in Detroit find it advisable to continue it at 20 
per cent of the present rate? 

Mr. DoRE.Airs. AVell. I do not think that they would be driven out 
of business. 

The Chairman. The committee will now hear from Mr. George P. 
Sawyer, chairman of the committee representing the Chamber of 
Commerce of the city of Buffalo. 

Mr. George P. Saav^-er. The chamber of commerce in the city of 
Buffalo has thought it worth while to send a committee here, con- 
sisting of myself and my two colleagues, in order to say to you gentle- 
men that there is a very exigent demand in the city of Buffalo and 
in western New York for an increased amount of power. From the 
time of the Pan American Exposition, 10 years ago. we have called 
our.selves the " Electrical City." Our plans, our investments, our de- 
velo])uient. have been based upon the benefit of Niagara Falls power. 
We now get from the Niagara Falls, through its distributor, an 



20 PRESERVATION OF NIAGARA FALLS. 

average of about 160,000 horsepower. Another company only skirts 
the boundaries of it. Our sovereign neighbor, the city of Laclva- 
wanna, where one of the hirgest steel companies is located, is a large 
consumer of power and practically a part of the city of Buffalo. 
There is a consumption b}^ this secondary company of perhaps twenty 
or thirty thousand horsepower, so that we use, maybe, a himdred 
thousand horsepower there. 

Mr. Flood. AVho do you get this power from ? 

Mr. Sawyer. The Niagara, Lockport & Ontario Power Co. dis- 
tributes to Lockport and the Ontario Power Co. distributes in the 
city of Buffalo. The Niagara Falls Power Co. is a growing comi)any. 

Mr. Flood. How much do you get from that ? 

Mr. Sawyer. The entire amount? I heard some of that comes 
from Canada ; but while gentlemen representing these companies are 
here they can tell you better than I can. I am speaking now of mat- 
ters that are well known and which are matters of common knowl- 
edge. The Canadian Niagara Powder Co. is practically owned by 
the same people who make up the American Niagara Power Co., and 
they report in their permit about 150,000 horsepower. 

Mr. DirENDEKFER. That is. about loO.OOO that they are permitted to 
bring into this country? 

Mr. Sawyer. That is all that this company can bring. 

Mr. DiFENDERFER. How much of that is being brought into the 
United States under the treaty? 

Mr. Sawyer. All of it. 

Mr. Cooper. Who issues this permit? Is it by virtue of a treaty 
or a law, or what? 

Mr. Sawyer. The treaty has amended the Burton Act: but of 
course, while I am very anxious not to venture upon subjects that 
can be better treated by other men — the amount is not strictly limited 
because the companies have the power — they have limited the power 
that they can import, but just in what way I do not know. You can 
get that from the power companies. But we will get about a hun- 
dred thousand horsepower if, as Buffalo asks* you to do, you give us 
the treaty — the treaty which is the supreme law of the land — or. we 
think, should be — and which was negotiated after two years, when 
every circumstance bearing upon the matter was brought up to a 
highly skilled and trained body. Since then, by means which seem 
to me to be unfortunate — but I am not here, gentlemen, to make a 
speech or to be lengthy ; I want to bring my reuuirks to a close. 

On February 16. 1911. the Chamber of Commerce of Buffalo sent 
a telegraui to Senator Root. At that time the act was pending. 
The telegram stated that the Chaml)er of Commerce of l^uffalo de- 
sired most earnestly the extension of the Burton lull for a further 
period of five years, and asked for a public hearing at wliirh to 
present their views, asking his leadership in placing the l)ill in his 
hands. This was signed by the president of the rhaniber of com- 
merce. That was answered by a telegram from Senator Poot saying 
that i)ublic hearings Avere not arranged for, and then another long 
and very emphatic telegram was sent. This w^as in February. 1011. 
I hold in my hands a resolution appointing this commitee, and 
asking, among other things, the increased amount of power. 

Now. gentlemen, that fixes my official status: and I can say. with- 
out powev to represent technically, without any authority except that 



PRESERVATION OF NIAGARA FALLS. 21 

covered by the Chamber of Commerce of Buffalo with its 3.500 mem- 
bers, that from Dunkirk to Syracuse, in the middle of the State, this 
same prayer goes up to you. The street cars in Syracuse are run by 
Niagara power. Rochester, Auburn, and many other places — a 
dozen — have their public utilities operated by this power, and they 
all want more. These two companies — one in Buffalo and one in 
the immediate vicinity of Buffalo— can take on to-day a new cus- 
tomer who wants more than 2,000 horsepower ; but they must reserve 
that for the man who has taken 20,000 horsepower. As his business 
increases he must have more and more. We are noAv at a power 
famine. This treaty has been negotiated, and yet it has been ob- 
structed, and we have come to pray that it be no longer obstructed. 

Mr. DiFENDERFER. Then, your principal concern is that more 
power be created for the purpose of consumption by people who need 
it in your city of Detroit? 

Mr. Sawyer. Yes, sir. 

yir. DiFENDERFER. That is your principal contention. Then, if 
that is true, is it not just as necessary to your people that it should 
be transmitted more cheaply? 

Mr. Sawyer. Just so. 

Mr. DiFENDERFER. Then, would it not be better for a commission 
to regulate that? 

Mr. Sawyer. I hesitate to ansAver that. I am a layman in this 
matter. I do know that there is nothing so complex or difficult as 
computations about electrical power. It is not like ale, which you 
can measure by the drink or pint or quart or by the gallon. There 
are gentlemen who are producing large amounts of power who say 
they can produce it just as well by steam. Mr. Frank Henry, of the 
Washburn Mills, told me the other day that he could make it just 
as cheaply making it in the city of Buffalo; and yet there are people 
who can tell you that electrical power does not cost half the amount 
that steam costs. 

Mr. Levy. I understood you to say that there is a practical i)ower 
famine? 

]\Ir. Sawyer. Yes, sir. 

Mr. Levy. And that to do justice to the people of Buffalo and 
vicinity and a large part of New York, it is necessary that the Falls 
may be made to yield more electric power. Is that so? 

Mr. Sawyer. AVell. we should import what we can under tlie 
treaty; yes, sir. 

Mr. Levy. Yes. Now. then, when that limit is reached there will 
be large plants, and won't there be another famine? 

Mr. Saavyer. AVell, sir, that I can not ansAver. 

Mr. Levy. And then Avon't there be another famine? 

Mr. Sharp. A demand for the abrogation of the treaty? 

Mr. Saavyer. AVell. the treaty exists. When you come to move as 
large a party as the United States Government, plus the Government 
of (irreat Britain, why, that thing Avill have to be met by a future 
generation. 

Mr. Levy. If they should invent a storage battery that is as use- 
ful — and that is practically possible — there is no reason why they 
shoidd not store up power during the night? 

Mr. Saavyer. Yes, sir; enough for a generation. 



22 PRESERVATION dl' NIAGARA FALLS. 

Mr. Li:vy. There luiglit be tliscoverecl some substitute for elec- 
tricity, but that is not probable. You say that the people oi Butialo 
want this on account of the power famine. Now, then, if this is 
done, the limit will be reached again and there will be another 
famine? 

Mr. Sawyer. Is it not an adequate answer to that question to say 
that we have a treaty siirned by the President, that this treaty was 
practically imattacked for a length of time, and then this was slipped 
over on use? "We come, seeing that the presumption is in our favor 
on account of this treaty, and I can not assume the role of a prophet 
as to Avhether we shall want more. 

Mr. DiFENDERFER. Right on the line of Mr. Cooper's question; as 
I understand it. it is a fact that out of IGO.OOO horsepower that 
Canada is permitted to put into this country only 110,000 of it is 
being used now. If that is true, then there are 50,000 horsepower 
remaining in Canada that can be used. Why should there be a 
famine ? 

Mr. Sawyer. I could answer that, but 

Mr. Garner. Might I ask you a question? The basis of this treaty 
was the preservation of the beauty of Niagara Falls? 

Mr. Sawyer. Yes. sir. 

Mr. Garner. And thus we are fighting the proposition of per- 
mitting a gi^eater amount of power to come from Canada. That is 
with the presumption that Canada will not use all the ])ower that the 
treaty now gires: is that not true? 

Mr. Sharp. Domestic. 

Mr. Sawyer. Why. no; I think that is a matter of information. 

Mr, Garner. I will ask you this question, then: If Congress did 
not ])ass laws regulating the importation of power from Canada, you 
could bring in the full amount that the treaty permits Canada to 
produce? 

Mr. Sawyer. Yes, sir. 

Mr. Garner. And also use the full amount that the treaty permits 
the United States to utilize ? 

Mr. Sawyer. Yes. sir. 

Mr. Garner. Now. the only discussion would be to determine 
whether or not Canada could use that power at present 

^Ir. Sharp. Domestic. 

Mr. Garner. All kinds of power: from both Canada and the 
United States. 

Mr. Sawyer. I admit that: I admit that: but we who have been 
in Buffalo know that the cry about the l)eauty of the Falls is more 
neurasthenic than ])rac-tical. You know that we can go to the Kails 
day after day and year after year and never see any perceptible dif- 
ference in the beauty of the Falls. Noav, there are other men who 
can argue that better, but the substance of your question was that 
there was some invasion on this scenic beauty, and that I deny. 

Mr. (iarner. !My object is this: In case Congress should extend it 
it 1(10.000 horsei)ower. would it not naturally follow that in the course 
of time manufacturing establishments would be created along the 
border, where the entire power would be utilized by Canada and the 
United States Avould have none? 

]\Ir. Sawyer. Certainly; the water will be abstracted anyway. 



PRESERVATION OP NIAGARA FALLS. 2:3 

Mr. Garner. As I uiKlerstand the Representatives who Avoukl like 
to see the scenic beauty preserved, if we prevent a foreign power 
being imported into the United States it will be years and years — 
probably a century — before the power will give out? 

Mr. Sawyer. Oh, no. 

Mr. Smith, of XeAv York. Mr. Garner, there is one other speaker 
following who will answer that. 

Mr. Curley. What is the difference in the prices charged by the 
two operating companies up there? 

Mr. Sawyer. I do not know anything about the price. 

Mr. Curley. AVhy. of course you know ; you are a member of the 
chamber of conunerce. 

Mr. Sawyer. No; I am struggling to fully answer all your ques- 
tions. 

Mr. Flood. It seems to me that these companies have divided the 
territory' up. 

Mr. Sawyer. Apparently ; but that is not true. The greatest diffi- 
culty I have is in talking about two things at the same time. All 
that I know is that there are two companies in Buffalo. Unfortu- 
natelj^ we have certain theoretical gentlemen who have never at any 
time accomplished any good for themselves or anybodj^ else, but who 
are abundantly able to run all the civic associations, public-service 
corporations, banks, and everything else. These gentlemen say that 
we will be obliged to go outside; that is what sent them, I assume, to 
Dunkirk, to Auburn, and to Montmorris. 

Mr. Flood. AVhat sort of a contract did this company in Buffalo 
make ? 

Mr. SA^\'YER. I can not go into that. 

Mr. CrRLEY. You will agree that it is a very important question? 

]\Ir. Sawyer. Oh, no. 

Mr. Curley. Then you can withdraw it. 

Mr. Sawyer. Yes ; but they Avanted to specify other things. 

Mr. Kendall. What do they charge for a kilowatt? 

Mr. Saavyer. I do not know. 

Mr. Kendall. You are here representing nobody ? 

]\Ir. Sawyer. Xo. sir 

Mr. Kendall. Are you interested in any of these companies ? 

Mr. Sawyer. Certainly I am not. 

Mr. Kendall. What do you use in your place — kerosene or gas? 

Mr. Sawyer. Gas; natural gas. 

Mr. Kendall. Are you in business in Buffalo ? 

Mr. Sawyer. Yes, sir. 

^[r. Kendall. Use kerosene? 

Mr. Sawyer. I am a director in various com])anies that use that, 
but I am not strictly a manufacturer. 

Mr. Kendall. You buy a lead pencil in a store and you know 
what you pay for it? 

Mr. Saavyer. Xo. sir; I have a stenographer aa-Iio buys them, and 
I AAould go crazy if I tried to knoAA- what I paid for eAcrvthing. 
[Laughter.] 

Mr. Curley. I assumed that you AAere a {)ractical man because 
you spoke so slightingly of the theorists, and as a practical man you 
should be familiar AA'ith the prices charged per kiloAA-att 

Mr. Difenderfer. Will you ansAver my question? 



24 PRESERVATION OF NIAGARA FALLS. 

Mr. Sawyer. Every contract that is made has to be filed with the 
public service commission. I am a director of a company — I hapj^en 
to be the president of a company which had to negotiate for a con- 
siderable quantity of Niagara power, and we could not do it because 
I thought Ave could light our office building cheaper in the old way, 
and we have been going on and taking care of things. Last month 
we made a contract for a long term of years with an electric com- 
pany. I do not know Avhether we have gotten it more liberally, but 
I think they have come down. Now, these prices all have to be 
O. K'd. ; ever}" contract that is put on file. The Utilities Commis- 
sion of the State of New York has been in operation since July 1, 
1907. Its decisions and the character of its members has given that 
commission a standing that is similar to that held by our Supreme 
Court or even our Court of Appeals. A good many of them are 
laymen, but some of them are lawvers, and I think that answers the 
question of price in New York State. I think tlie complications 
growing out of any attemj^t to make the price parallel to that of any 
other country is likely to be futile, but that is only my opinion 
about it. 

Now, gentlemen, I have one otiier thing to say from the chamber of 
commerce, and that is, that we want you members of this commit- 
tee to come up there as our guests and see the Falls and study them 
at close hand. Gentlemen, remember that we have been studying 
this proposition since 1890, when the first electrical installation be- 
gan, and it is full of pitfalls and full of complications, and a man 
must be almost superhuman who can handle this as an academic 
proposition without having the thing before his eyes and mind, to 
get really the idea. 

I have had the h(mor of conducting to the Niagara Falls the 
President of the United States and spending a day with him 

Mr. Legare. I want to ask you this question: Was not the question 
of scenic beauty settled by this treaty? 

Mr. Saavyer. Certainly. 

Mr. Legare. Was not the treaty brought about by the endeavor to 
find out just hoAv much Avater could be used Avithout affecting the 
scenic beauty? 

Mr. Saavyer. Yes. 

Mr. Legare. And did not that commission of scientists decide that 
the amount of Avater used in the treaty could be used without affect- 
ing the scenic beauty and no more? 

Mr. Sawyer. Yes. 

^Ir. Legare. And avc can use the limit, tlien. mentioned in the 
treaty ? 

Mr. Saavyer. Yes, sir. 

Mr. Flood. A more important question is the question of the price 
of this power transmitted from Canada. 

^Ir. Saavyer. T only AAant to get my invitation out. 

^Ir. Garner. If it is the duty of this committee to go to Buffalo 
and Niagara Falls for the purpose of seeing the Falls, is not it the 
duty of the people of the LTnited States to pay the expenses? 

Mr. Saavyer. I am not a casuist, but I can not answer your question. 

The Chair:man. You have no objection to the members paying 
their OAvn fares? 



PRESEBVATION OF NIAGARA FALLS. 25 

Mr. Sawyer. Not the slightest. I have been there on several oc- 
casions with the Committee on Rivers and Harbors. 

Now. we want you to come to the city of Buffalo, which has a 

hundred thousand dollars to spend on advertising 

. Mr. Kp:xdall. And entertainment. 

Mr. Sawyer. And this would be a very cheap method of coming 
there. If you don't want to come at our expense, come at your own. 
It seems to me a needlessly sensitive question — only a matter of two 
days' banging around in a sleeping car. I think it is almost a sense- 
less objection. We are so confident that you will agree with our posi- 
tion if you will come there and look at the Falls. 

Mr. Kendall. The treat}'^ had its origin out of a general demand 
that existed in this country and in Canada for the preservation of the 
scenic beauty of the Falls? 

Mr. Saavyer. Yes. 

Mr. Kendall. I think you will agree to that. 

Mr. Sawyer. Yes. 

Mr. Kendall. And prior to the negotiation of the treaty the tes- 
timony of the most competent experts in this country and in the other 
country was taken as to the amount of water diversion that could be 
safely authorized and contemplated the preservation of the Falls? 

Mr. Sawyer. I so understand it. 

Mr. Kendall. I think Mr. Root represented this Government and 
Mr. Bryce the other Government? 

The Chairman. Yes. 

Mr. Kendall. They determined that not more than 36,000 cubic 
feet of water a second on the Canadian side and 20,000 cubic feet a 
second on the American side could safely be diverted. What is the 
equivalent horsepower of a cubic foot of power? 

Mr. Saavyer. That depends on the effectiveness of the installation. 
It takes from 13 to 15, or even to 17. 

Mr. Flood. It was said before this committee last summer to be 17. 

Mr. Kendall. Taking 15 as the mean, that would mean then that 
the United States would have the right to create 300 horsepower 

Mr. Saavyer. Fifteen 

The Chairman. Fifteen times twenty thousand. 

Mr. Saavyer. Yes. 

Mr. Kendall. And Canada would have the right to create 36 
times 15? 

Mr. Sawyer. Yes. 

Mr. Kendall. Now. under the provisions of the Burton laAv only 
160.000 horsepower can be transmitted into the United States? 

Mr. Saavyer. Yes. 

Mr. Kendall. How much of that is now being appropriated by 
people on this side? 

Mr. Saavyer. "Why don't you let these engineers answer that Avhen 
they come? I think there is a dead charter over there that is held 
in a dog-in-the-manger kind of way; but there are gentlemen here 
who can answer that, so please let me go. 

The Chairman. Mr. Sawyer, there are eminent engineers here Avho 
.can go into those details. \Vhat I would like to have you tell us is 
what the people of Buffalo Avant. I am a friend of Buffalo. Tell 
us Avhat the chamber of commerce and the people of Buffalo want ? 



26 PRESERVATIOX OF NIAGARA FALLS. 

Mr. Sawyer. Thev want more power. They want the limitation 
removed. They want all the power that will come from forty-four 
hundred additional cubic feet per second on this side. 

The Chairman. In other words, they want what the treaty gives 
the United States^ 

Mr. Saavter. Yes; any they don't lake any hand in the distribu- 
tion of this forty-four hundred feet. Of course, we want it where we 
can get it. 

Mr. (tarner. We want to thank you for your very kind invitation. 

Mr. Sawyer. I do insist that that is open to you at any time. 

The Chairman. The committee will now hear from Gen. William 
H. Bixby. Chief of the Corps of Engineers of the United States 
Army. 

REMARKS OF GEN. WILLIAM H. BIXBY, CHIEF OF THE CORPS OF 
ENGINEERS OF THE UNITED STATES ARMY. 

Gen. Blxby. Gentlemen. I came here with a little more haste than 
I expected this morning, because I did not have much notice that I 
would be called <m this morning. I have brought along with me 
Maj. Ladue, of my office, who has had special charge of this Niagara 
Falls matter during the pa.st few years in my office; and I have also 
brought with me Mr. Buell of his office. We have come without any 
special preparation of figures or specially prepared documents. We 
can furnish these to you at any time if you will indicate just what 
you want. Of course, we can state all that we have gone over in the 
past years; but the most essential features of the engineer's work in 
the preservation of Niagara Falls are all boiled down in the printed 
report which you have in front of you. 

Mr. DiFENDERi'TER. AVhat is that printed report which vou speak 
of? 

Gen. Bixby. House Document '240, 

Mr. Gardner. Oh, no; that is not it. 

Gen. Bixby (after examining pamphlet). No; it is a quarto vol- 
ume about three-quarters of an inch thick. 

Mr. DiFENDERFER. It is a Senate document. As printed it is a 
Senate document, No. 105. Mr. Cooper, you can get it. 

Gen. Bixby. The document that is already printed and distributed 
is Senate Document No. 105. The other document, which is in proof 
sheets and in the printer's hands now, is House Document No. 240, 
this session — they are two separate and distinct documents. 

Mr. DiFENDERFER. This House document is later? 

Gen. Bixby. It is running through the press now and will be 
bound and distributed presently. .In this last document we state the 
exact total effect, so far found, on Lake Erie and on the Niagara 
River of the diversions up to date; and have made estimates of what 
the effect will be on these waterways from the total diversions that 
are being permitted, and they will be accompanied by figures. 

Mr. Kendall. You have reported what the effect will be of the 
diversion allowed by law ? 

. Gen. Bixby. Not all of it, but of so much as has been used. 
' Mr. Kendall. Then you have reported what, in your opinion, 
A\ould be the effect 



PRESERVATION OF NIAGARA FALLS. ^7 

Gen. BixBY. We figured -what would be the total effect from the 
total diversions authorized for the American companies. 

Mr. Garner. Are those figures that you can give us now ^ 

Gen. BixBY. Yes, sir; the effect on the Horseshoe Falls from 26,600 
cubic feet per second diversion. That is the authorized diversion on 
the American side plus the estimated actual diversion f)n the Cana- 
dian side June, 1011. 

Mr. (tArner. What is the efi'ect on the Horseshoe Falls? 

Gen. BiXBY. P'our inches at the American side and 9 inches oh the 
Canadian side of the Horseshoe Falls; and five-eighths of an inch on. 
the American Falls. 

Mr. Garner. It has that effect now ? 

Gen. BrxBY. Yes, sir; with the present diversion. 

Mr. Flood. The" question we are considering is. What effect it 
would have on the Falls to divert 4,400 feet more '. 

Mr. Garner. What effect it would have on the Canadian Falls, too. 

Gen. BixBY. Well, we get this total of 4 inches, at one end and 9 
inches at the other end of the Canadian Falls from the 26,000. 

Mr. Legare. And you get the five-eighths of an inch on the Ameri- 
can side? 

Gen. BixBY. Yes, sir; on the American Falls; so that the 4,000^ 
more of flow will hardly be appreciable. Now, the present effect 
tliat we get on the Niagara River is about ;") inches at the head of the 
rapids above the Falls, and the present effect of the total diversion is 
only about an inch and an eighth on Lake Erie, so that, so far as 
navigation is concerned, there is no serious inj my by any of these 
diversions, and I should not think them anything serious. The effect 
on the beauty of the Falls depends largely on what the lowering from 
;> to 10 inches will produce in scenic effect. Now, our reports give 
photographic views at high water, at low water, and at mean water 
on th.e Falls, so that anvbody cnn look at these pictiu-es and see how 
much each portion of the Falls is affected — how the Falls show up. 

The Chairman. And can it be perceived. General? 

Gen. BixBY. Oh, yes; the pictures show the three stages of water. 

Mr. Garner. General, might I ask you whether or not you have es- 
timated the effect it would have to consume the entire Avater allow- 
ance authorized by the treaty on both sides of the Falls? 

Gen. BixBY. We have not figured that out for the total consump- 
tion, but it can be figured out roughly from these other figures and 
there would not be much difference. 

Mr. (lARNER. In other words, it would not affect navigation? 

(xoi). l^ixBY. Its effect on navigation Avould be something less than 
2 inclies on Lake Erie, and of course a fraction of that would back 
up on LalvC Huron. 

Ml'. Kenoall. What is 26,000 feet per second, general? 

(tcu. BixBv. AVhv, we had the authorized diversion of the United 
States and the estimated diversion on the Canadian side, and we had 
taken the actual measurements at different stages as bases, and then 
figured these dispersions to get the mean effects for these places. 

Mr. Kendall. The authorized diversion on the American side is 
15.600. 

(ren. BixBY. Not by the treaty. That is 20.000, but at the time 
when these reports were going through we were working undev the 
Burton Act. v 



28 PBESERVATIOX OF NIAGARA FALLS. 

Mr. Kkndall. Of course, the Burton Act does not authorize any 
hirger diversion than is inchuled in the treaty. 

Ml'. Flood. He is talking about 

(ien. BixBY. They were estimated to be using 11.000 on the Cana- 
dian side: we took 26,000 as the total. 

Mr. Flood. You said to divert the additional 4,400 feet would not 
hurt the Falls 

(jcn. Blxby. The additional 4.400 would not be noticeable. 

Mr. Flood. But the difference in the Falls that you can see in the 
.pictures is that due to the low water or to the diversion that has 
already taken place? 

(leiL BixBY. To both. 

Mr. DiFENDERi-ER. Now, just let me get this into my head. Maybe 
you understand it, but I do not. Suppose it is low water, it is 10 
inches lower than it would have been if there had been no diversion, 
is it not, at low water? 

Mr. Le<;are. If there had l3een no diversion at all. 

Gen. BixBY. Ten inches lower from what? 

Mr. Cooper. If there was no diversion at all, this taking out of 
26,000 puts it 10 inches lower than it Avould have been had there been 
no diversion. 

Gen. BixBY. The total diversion is figured to produce 4 inches drop 
in level at the American end and 9 at the Canadian end. That is fig- 
ured at a mean stage, and it is probable that it would be the same at 
a low stage, or at the high stage. That is, figuring 15,600 cubic feet 
on the American side and 11,000 on the Canadian side, making 26,600 
total diversion from the Falls. Four thousand four hundred would- 
be about one-sixth of that. 

ISIr. Kendall. The computations you have made there were on the 
assumption that only 26,000 cubic feet were diverted? 

Gen. BixBY. Yes, sir. 

Mr. Kendall. Under this treaty Canada has the right to divert 
36,000 cubic feet per second and the United States has the right to 
divert 20,000? 

(ren. BixBY. Yes. 

Mr. Kendall. Now, suppose that entire diversion should occur? 

Gen. BixBY. Yes. Quite likely we would get double the drop we 
have at present — about 8 inches on the American end and about 18 
inches on the Canadian end. 

Mr. Kendall. That probably would not affect navigation ma- 
terially ? 

Gen. BixBY. No, sir. 

Mr. Kendall. What effect would that have on the scenic beauty 
of the Falls ? 

Gen. BixBY. It would make more than the difference you can see 
in the photographs, between the mean and low stages. 

Mr. Cooper. That does not include the Chicago Drainage Canal? 

Gen. BixBY. No. 

Mr. KENDALii. How much is utilized bv the Chicago Drainage 
Canal? 

Gen. BixBY. Well, they have an allowance of between four and five 
thousand cubic feet from the Secretary of War. They are practically 
using, I am told, in the neighborhood of 7,000. They built their 
works for 10,000; and their statement that their canal could carry 



PRESERVA'LION OF NIAGARA FALLS. 29 

10,000 was in tlieir original request for a permit, and this is consid- 
ered as their limit, and was so treated in the International Water- 
ways Commission reports. Chicago has been requesting the Secre- 
tar}^ of War to grant them the privilege of using 14,000, saying the 
canal can take it. Now the actual consumption of to-day is between 
five and eight thousand. 

A Member. Now, we are utilizing at Niagara 15,600 diversion — 
practically ? 

Gen. BixBY. We have not found that yet. Last year the report 
of June 30, 1911, showed the total diversion on the American side as 
being only 13,800 cubic feet a second, and the total diversion on the 
Canadian side was only 11.010 feet per second. 

A Me:mber. Whv do we get the figures constantlv recurring here — 
20.000 and 36,000 ? 

(xen. BixBY. Because that is allowed by the treaty. 

A Member. But it is not what is being actually taken? 

Gen. BixBY. No; it is not what is being actually taken. 

A Member. Now, take what the Chicago Drainage Canal takes in 
addition to this 20,000. 

Gen. BixBv. Nobody knows just how much they are entitled to at 
Chicago. The figures at Niagara are the 20,000 for the United States 
undei- the treaty and the 30.000 for Canada, and have nothing to do 
with Chicago. 

A Member. Is it your idea that the 20,000 does not affect the 
amount taken out for Chicago? 

Gen. BixBY. Why, 3'es. 

Ml-. Kendall. You mean from a treaty standpoint? 

(xen. BixBY. From a treaty standpoint. 

The Chairman. General, there seems to be some confusion as to 
the figures that yo\i used. I believe you stated that Horseshoe Falls 
has been lowered about 4 inches on the American side and 9 inches 
on the Canadian side, and I understand you to say that the. American 
Falls show only about five-eighths of an inch. Is that correct? 

Gen. BixBY. Those are the figures; they are given very carefully 
in a statement in this printed I'eport that is coming out. 

The Chairman. General, have you made any investigation as to 
the effect on the lakes? 

Gen. BixBY. The efl'ect follows from one lake to another, but it is 
diminished in passing from Lake Erie to Lake Huron. If Lake 
Erie stands higher, so does Lake Huron, but the difference is small 
if you consider what is backed up. 

Mr. Cooper. ^lay I ask you a question ? Do you know wljether all 
the water that is now being taken is being taken from the river above 
the Falls? 

Gen. BiXBY. It is taken from dilferent places along the river, up 
quite a distance. 

Mr. Cooper. Would it be possible to secure sufficient power from 
the lower river? It has been stated that tlie Falls drop about 82 feet 
in the distance of about a mile and a half. Do you think it would be 
possible to change that for commercial purposes ? 

Gen. BiXBY. Why. I could not judge how" much Buffalo wants; 
but you could get a large power, of course, by putting a dam across 

28305—32 -3 



30 PKESKHVATIOX OF NIAGARA FALLS. 

the Niagara Kiver at the lower end where it comes int(> tlie lake, and 
so utilize the water that conies from the Falls. 
A Mk:\ihei{. But that is not on the Falls. 

(len. BixBY. Down below the Falls. 

The Chaiioian. Gen. Bixby, Mr. Eome G. Brown would like to 
ask yon a few questions. 

Gen. Bixby. Ye.s, sir. 

jNIr. Broavn. Simply for this purpose, having in mind what I 
remember to have been one or two conclusions of the engineers' 
report last year, I thought I would ask the General if my conclu- 
sions as to his conclusions are correct. Is it not true that the sur- 
vey's made by the United States surveyor show substantially that the 
entire aniount of the diversions at Niagara Falls — those actually 
made and those authorized — would not have any appreciable effect, 
any substantial injurious eifect, upon the navigation of the Niagara 
River or Lake Erie? 

Gen. Bixby. Yes, sir. 

Mr. Brown. That, as I understand it. is a conclusion, is it not— 
that there is no serious injurious effect ujion navigation? 

(xen. BixBY". The effect is appreciable. The question is whether 
its effect on conunerce is of serious moment. The difference in level 
in Lake Erie would be approximately about 2 inches: and with all 
the commerce that floats upon the lake the question, then, is, What 
is the value of a difference of 2 inches in a draft of 19 feet? 

Mr. Brown. That is 2 inches at the outlet? 

Gen. Bixby. Yes. sir. 

Mr. Brown. The entire lalce? 

Gen. Bixby. Yes; because Lake Erie is supposed to be level. 

Mr. Brown. As I understand you. the diversions made and au- 
thorized Avould not have any substantial effect upon navigation? 

Gen. BixiiY, Well, the report says that the effect can not be neg- 
lected. Its effect is small because it is only 2 inches. 

The Chairman. General, practically all of this water goes over 
the Falls, does it not? 

Gen. Bixby'. All of the water that is used for power purposes at 
Niagara River comes down toward the Falls: some of it is taken out 
and goes around the Falls, and it all goes out of the river into Lake 
Ontario. 

The CHAiR:vrAN. The water used for power does not go over tho 
Falls, does it? 

Gen. Bixby. The amount that is used for power does not go over 
the Falls. 

The Chairman. In other words, if the water was not diverted it 
would go over the Falls ? 

Gen. Bixby. Yes, sir. 

The Chairman. That is the point. 

Gen, BixBY'. Yes. 

The Chairman. So that so far as the lowering of Lake Erie is 
concerned — that is immaterial because it would be lower anyway ? 

Gen. Bixby. No, no; there is a point in there that does not show 
up at first sight. 

The Chairman. Tell us just what difference does it make? 

A Member. A layman might understand that if you offer a means 
of outlet the water will go out. If you build a dam across a creek 



PEESERVATION OF NIAGARA FALLS. 8iL 

or ill a gutter it will flow around; if you put a ditch there it will 
flow more rapidly. 

The CiiAiKMAN. Tluit is the proposition I wish you would explain. 

Gen. BixBY. Yes, sir. Now, when the water flows over the crest 
of the Falls it drops freely and there is not anything to stop it ; con- 
sequently it falls downward at a greater speed than it has in the 
Niagara River above the Falls, and the only reason it does not move 
so fast in the Niagara liiver above the Falls is because of the fric- 
tion of the rocks on the bed of thei stream, and also because of the 
particles of water in its own way, so that the Avater above the crest 
of the Falls has to go somewhat slower. When it goes over the 
Falls it goes much more rapidly. 

NoAv, the pumping of water out of the Niagara River for power 
purposes does take aAvay from that river above the crest of the 
Falls a certain amount of water and a certain amount of resistance 
to the water above; so that the water above comes down much more 
rapidly than if you did not take oiU the water below. In the same 
w'ay as if a crowd of people were coming down a staircase: if you 
have a policeman come along and take away the front third of the 
people, then the crowd in the rear can move along so much the faster. 
So that at Niagara Falls the diverting works do the policeman's work 
of taking the water awa}^ more quickly below, and the water above 
moves faster (m account of the diversion ; and as it moves faster the 
level of Lake Erie drops somewdiere between 1 and 2 inches. 

The Chairman. I think, General, you have made that dear. 

Mr. DiFENDERFEij. Moviug faster? 

Gen. BixBY. Yes, sir. 

Mr. Kendall. Let Mr. Brown finish his exauiiiiation ; he is still on 
his feet. 

Mr. X>R(^<wN. Is it not true, and so stated as a conclusion in your 
report, that the larger part of the Canadian diversion is below the 
crest, so that the diversion made by the two companies has no effect 
whatever upon the waters of Lake Erie? 

Gen. BixBY. As the water approaches the Falls it goes down the 
rapids over one or two little crests, one or two rapid drops; and on 
the Cauadian side the greater part of the powder diversions are be- 
tween the top of the Falls themselves and the top of the rapids — they 
are in between the two. The biggest diversion on the Canadian side 
is down close to the top of the Falls — so far down that it does not 
produce any appreciable effect on Lake Erie. 

Mr. Brown. The Avater being taken below the weir point, I sup- 
po.se the engineers call it? 

Gen. BixBY. Yes, sir. 

Mr. Broavn. That would be so small that particular diversion 
would have no appreciable effect ? 

Gen. BixBY. Very much less effect than the other, because it is 
taken where the water is dropping faster. 

Mr. Brown. Mind you. General, I am not trying to cross-examine 
5'ou, but I want to bring out certain facts for the benefit of the com- 
mittee. Is it not true, and so .stated by you as a conclusion, that the 
diversions that are being made, even up to the amounts authorized, 
have and would have no perceptible or appreciable effect upon the 
scenic appearance of the American Falls — that which is east of Goat 
Island? 



32 PRESERVATION OF NIAGARA FALLS. 

Gen. IJlxbv. AVe only get, as I explained here, live-eighths of an 
inch on the American Falls from all the diversion on the American 
side, plus the present consumption on the Ontario end: and tliat is 
very little. 

Mr. Hrowx. And the additional diversion of 4.400 feet would be 
hardly a])preciable ? 

Gen. BixBY. Hardly be n(jticed. 

Mr. Brown. Then the conclusion as to the American Falls is that 
the amount actually diverted, even if the 4,400 feet more were actu- 
ally diverted — the elfect on the scenic appearance of the American 
Falls is inappreciable — speaking only of the American Falls? 

Gen. BixuY. I think you are right : l)ut I have not absorbed fully 
the contents of this document. 

Mr. Browx. Neither have I. Then, as to the Canadian side — be- 
fore I come to the scenic beauty again — you have spoken about the 
effects on the navigation of Lake Erie. Is it not your conclusion 
that, so far as the eti'ect on that part of the Niagara River considered 
as a boundary line is concerned, that the effect of the diversions nuide, 
even if extended to the full anunmt allowed in the treaty, would be 
negligible ? 

Gen. BixBY. I do not think 1 understand your question. It would 
not affect — it can not affect the boundary line. 

Mr. Brown. That is my point. On page 13 of Senate Document 
105 — I understand your conclusion to be that, so far as considering 
the boundary-line question, it has no effect on the boundary line? 

Gen. BixBY. Yes, sir; that is true; no effect on the boundary line. 

Mr. Brown. Now, then, General, having spoken of the effect on 
the navigation of Lake Erie, and on the river as an international 
boundary line, and that even as to scenic beauty there is no effect on 
the .Vmerican Falls, may I ask you one or two questions as to the 
Canadian Falls? [Reading from ])aper:] ''There are on the Cana- 
dian side certain falls known as the Horseshoe Falls." The effect 
that 3'ou have found is something like 4 inches on this side of the 
Horseshoe anci something like 9 on the other side? 

A Me:mber. Did you say 3 or 4 and 8 or ? 

Mr. Brown. Four and nine. 

Mr. Kendall. Of course, that is not on the assumption that 
5(5,000 feet will be diverted, but only that it may be. 

Mr. Brown. This is only preliminary. The effect of this entire 
diversion in the river shows a difference of 4 inches on the Amei'ican 
side of the Horseshoe Falls and 9 inches on the Canadian side. Now, 
General, is it not true, and so stated in your report as a conclusion — 
I want to compare that variation of the levels in the river — is it not 
true, and so reported in your report, that an easterly breeze across 
Lake Erie — not a hurricane, but a breeze — would make a difference 
in the level of the overflow of Lake Erie of several feet? 

Gen. BixBY. It will do so. 

Mr. Brown. And would not an ordinary westerly breeze have the 
effect of temi)orarily affecting the depth of the water over the Ca- 
nadian Falls a matter of a foot, or maybe a foot or twp? 

Gen. BixBY. It would increase it. 

Mr. Brown. And is it not true that the variations in the levels 
of Lake P^rie may be due to the difference between a sti'ong westerly 
breeze and an easterly breeze — the variation of 14 feet? 



PKESEEVATION OF NIAGARA FALLS. 33 

Gen. BixBY. It has been .somethin<>- like that. 

Mr. BRt)WN. That is, an easterly bree/e has been known to raise 
the level of Lake Erie^ 

Gen. BixBV. The easterly breeze raises one end and the westerly 
raises the other. 

Mr, Bijowx. Well, it piles it up — may make 14 feet difference? 

A Membkk, Fourteen feet where ? 

Mr, Broavn. An easterly breeze might pile up the waters 8 feeti' 

Gen. BiXBY. SomcAvhere around that. 

Mr. Broavn. And at the same time would affect the depth to 
some extent all over the lake, and at the same time it affects the 
depth over the Falls ^ 

Mr. Kekdall. These propositions seem so self-evident. 

Mr. Broavn. I Avas only bringing them out to emphasize the effect 
of natural canses — for comparison. 

Mr. Cooper. Noav, I ask you to refer to page 15; it is later and, 
under the ordinary rules of construction in laAv. ought to represent 
your later impressions. , ] Heading from document :] " The Falls 
are held in trust, etc.. from the Canadian side." Is tliat your con- 
clusion? 

Gen. BixBA'. That Avas the conclusion of the Avriter of this report. 

Mv. Cooper. Who wrote that ? 

Gen. BiXBY. Maj. Keller. 

]\Ir. Kendall. Is he an expert in your department? 

Gen. BixBY. Yes, sir. 

Mr. Cooper. I Avould like to read this on ])age 15 [reading] : ''An 
earnest consideration of the effects, five to five-tenths inches." 

Mr. Kendall. Canada is likely to diA'ert all under this treaty 
Avithout our control. 

Mr. Cooper. I observe this photograph was taken at a time Avhen 
tourists are most generally at the Falls — midsummer, July 26. I 
observe for a long distance there is no Avater going oA'er there, ap- 
parently ; and if it is, it is a very straggly, scraggly stream. If that 
was loAver, how much more scraggly Avould that look? 

Gen. BixBY. If you take aAvay all the Avater, the Falls Avill be gone. 
The question is simple: but Avhere are you going to draAv the line 
as to amount to be taken? 

Mr. Garner, (ieneral, I did not know until Mr. Cooper read it 
into the record that your department Avas considering the question 
from the scenic vieAvpoint. There are four propositions being con- 
sidered. The first question is. Will Congress take any action to 
govern the taking of this water or let the treaty stand as the laAv? 
The second proposition is, if we do, Shall we permit on the American 
side more diverting of Avater than is contemplated under the Burton 
Act? The third is Avhether Ave shall permit i)OAver to be transmitted 
from the Canadian side in excess of Avhat is alloAved — 100,000 horse- 
poAver. 

Gen. P>ixBY. AVell. I should like to take up the questions rather in 
the inverse order, because I can ansAver them more quickly in that 
Avay. So far as the importation of poAver is concerned, the P^ngineer 
Department has no interest whatever, so far as I am able to discover, 
I have ahvays considered that it was a question of protection or 
tariff or both. It has no value to us from an engineering point of 
view. It is a question that would possibh^ come up under conserva- 



34 PRESERVATION OF NIAGARA FALLS, 

tion. If we want to conserve power to the United States, there 
should not be any objection whatever to importation of electricitj' ; 
but the United States, through the War Department and Chief of 
Engineers, has watched that question simply because it was laid 
down in the Burton Act, and as souiebody had to do it, the Secre- 
tary of War did it. Xow, we have tried to follow out the condi- 
tions of the Burton Act, but it is exceedingly difficult for us to hud 
out how nuich electricity is generated on the Canadian side, and it is 
a question of some difficulty to say how much thej^ would send over 
the Niag-ara River if there were more cables; and such measurement 
is a piece of difficult work which the Engineer Department is not 
specially interested in, but it is willing to do as well as it can at any 
time if Congress saj's so. We are willing to do it if Congress so 
wishes. 

As far as the importation of power is concerned, the War Depart- 
ment has no interest one way or the other as to where the electricity 
goes nor how much of that power is moved in one direction or an- 
other, but there is a point about the power that we think somebody 
ought to look after, and that is, in the interests of conservation, the 
United States ought to see that so nuich of the surplus Avater as is 
allowed to be diverted should be made to develop all the power that 
it can give and, therefore, if anybody is going to take water from the 
Falls to develop power, they ought to use the entire drop of the 
Falls down to I^ake Ontario, because every foot of drop means that 
uuich extra power, for if 1 f(K)t gives 1 horsepower, '2 feet will give 
•2 horsepower, and 10 feet will give 10 horsepower, and so on; and 
so 1 think the United States ought to select the individuals who can 
get the most work out of it. We* ought to get some legislation on it 
somewhere. 

^Ir. Kexdaix. I think the legislation in the Burton Act was for 
the purpose of controlling, as far as it could be done by this (tov- 
ernment, the diversion on the Canadian side. If that limitation is 
advancetl or removed, it would to some extent appreciably diminish 
the scenic appearance of the Falls? 

Gen. BixBY. Well, personally I do not know auA'thing about this 
except my own personal views; but I do not expect to see but a very 
few years elapse before Canada will use every bit of water that it 
can take and the United States will use every bit of water that it 
can take; and if the Canadians have any ti'ouble in exporting the 
poAver fnmi Canada, I do not think it will be more than a few years 
before they will be using it up at jiome. I think all this power will 
be used for electricity, and the place of its use is not the concern of 
the War Department, nor does it concern navigation. 

Mr. (tarxeh. In other words. General, if we pass a law prohibit- 
ing that power from being utilized by American citizens. Canada will 
allow it to be used on the Canadian side? 

Gen. BixBY. Yes, sir. 

Mr. Sharp. Of course, that is on the assumption that the Cana- 
dian Govennnent will not interfere? 

Gen. BixHY. AA'ell, if they can not find capital at home they will 
use American capital. 

Mr. Sharp. I mean for the preservation of the Falls? 

Gen. BixBY. Oh, yes. 



II 



PRESERVATION OF NIAGARA FALLS. 36 

A Member. You mentioned tlie fact that this water should be used 
with greater or more i^otency to devek>p power;' 

Gen. BixBY, There are jihints now on the American side that do 
not derive as much j^ower as they can from the water used by them. 
The Niagara Falls Hydraulic & Manufacturing Co. drops its water 
205 feet and gets every foot of work out of it. Now. the Canadian 
Niagara Co. uses a dro]) of but 140 feet, the Electrical Development 
Co. uses a drop of but 135 feet, etc., the Hydraulic Co. and the 
Ontario Co. get about 200 feet drop out of that water, and some 
others only get 50. 

Mr. Garnek. General, in that connection, your contention is that, 
in the interests of conservation, the companies taking the power on 
both sides should be required to get the greatest ])ower out of the 
water being utilized? 

Gen. BixBv. Exactly. 

Mr. Garner. Now, I can see no way by which the American Con- 
gress can control the Canadian side, unless they control the importa- 
tion of power into the United States. We can not control it unless 
we say to the Canadian ]:)ower companies, *" You nmst c<unp]y with 
certain regulations "— 

A Member. In utilization of the potency of the water. 

Gen. BixBY. Yes, sir. Well, I presume that some restrictive 
legislation as that might be found that would have that effect for 
a few j^ears, but it woidd not be for long, because even Canada is 
not going to throw away water poAver and dollars and cents for 
many years to come. I know if I had a dollar and one man could 
get 10 per cent interest out of it and another man 20 and another 40 
I would hunt up the man who would give me 40 per cent. Now', we 
can get from one and one-half to four times as much power out of 
this water by using the same arrangements as the Niagara Falls 
Hydraulic Co. and the Ontario Co. are using, and Ave can get from 
one and one-half to four times as much Imsiness and profit out of 
it as anybod}' else using that poAA^er like the other companies Avith 
from 50 to 135 feet head. 

The Chairman. Gen. Bixby. have you any objection to Richard B. 
Watrous, secretary of the American Civic Association, asking you 
a few questions? 

Gen. BixBY. Not at all. 

Mr. Richard B. Watrous. The reason I have asked permission 
to ask a question now is because the General has touched upon the 
question of using more than the amount of Avater that is used, and in 
this report, which is a very admirable report, there is one very 
pointed statement to the effect that one of the American companies 
is wasting one-third of the head of the Avater it is permitted to use. 

As I understand it it is permitted to use 8,600 cubic feet, and a 
third of that Avould be 2.8()6 cubic feet. That transferred into })OAver 
and, using the figures of Congressman Simmons, multiplied by 20, 
Avould be 57.320 horsepoAver. losing the figures which Ave have been 
using it Avould mean 34,392 horsepoAver. We have listened to the 
statement to the effect that Buffalo is ciying for more Avater ]:»0Aver. 
NoAv, the question I desired to ask of Gen. Bixby is Avhether. Avhen 
this report Avas made, this information was obtained from that par- 
ticular company? 



36 PRESERVATION OF NIAGARA FALUS. 

Gen. BixBY. I understand the company's plant is being changed. 

Mr. Watrous. Are there any late figures on it. General? 

Gen. BixBY. There may be, but I am not posted on the late figures. 
All I know is that the changes are being made, and my reuiarks are 
only aimed at the pure theory of c(mservation, which it is our 
bounden dut}' to get at. 

Mr. Watrous. I understand that, but in this repart there is a more 
definite statement, where the Avaste of a third is quoted, and that 
is recommended to be changed. It seems to me that there is one of 
the very strongest arguments, because if the}^ would use what they 
are permitted to use they would supply a great additional demand. 

Mr. Garner. In that connection, may I ask whether or not under 
the Burton law you liad any power to control the power ])lants^ 

(ten. Bixin*. The mvanl wns laid down for us and wo were to watdi 
its execution. 

Mr. Garner. Then y(»u luul no ])o\vim' under the Burton Act to 
control their methods? 

Gen. BixMY. No. sii-. 

Mr. (tarner. If you had that power you could have forced them to 
utilize the greatest amount of ])()wer? 

Gen. Bixr.Y. Yes. sir: practically. 

Mr. Browx. May I ask the general a question '. General, where a 
company, like the Canadian Niagara Co.. takes its water from below 
the crest of the Falls — Ave have all seen, I think, that when a com- 
pany takes it from above the crest the diversion tends to be unfavor- 
able to navigation? 

Gen. BixBY. Yes. sir. 

Mr. Brown. Now, then, tlie Ganadiiin Niagara Co. takes its water 
from Ijelow the crest? 

Gen. BixRv. Yes. sir. 

Mr. Brown. "Jlierefore. we may find that the use of the lower head 
preserves navigation. Is that true? I mean, the company that takes 
water from below the crest wou.ld be a company that would not tend 
to injure navigation? 

Gen. BiXBY. The lower down the water is taken the less the in- 
jury would be to the navigation interests. 

Mr. Brown. Then, is it not true that the lower the head at which 
the water is used the less the tendency is to injure navigation '. 

Gen. BixBV. That is true in the case you mention. 

Mr. DiFENDERFER. Now. General, these companies who are privi- 
leged to use this water, if they had consumed all that was in their 
power to consume. Avould it not ha\'e cheapened electricity? If these 
companies who are privileged to use this power had used the maxi- 
mum capacity would it not have given the people a cheaper power? 
In other words, haven't the laws of supply and demand lieen (h'lied 
in this case and the law of monopoly followed ? 

Gen. BixBY. Probably if they had used the Avater at the greater 
head they Avould have made their electricity a little cheaper, but that 
is something I would not ordinarily inquire into. 

Mr. Sharp. All these poAver developments precede the Burton 
Act? 

Gen. BixBY. They all precede the Burton Act, and the perjnits 
Avere issued with a fiiir regard to the men who Avere develojung the 
business. 



PRESERVATION OF NIAGARA l-ALLS. 37 

Mr. Legare. General, ha\e you before you the amount of cubic 
feet that the Canadians are usino? 

Gen. BixBv. In June. 11)]]. tiie Canadians were usinji al>out 11,000 
cubic feet. 

Mr, Sharp. Twenty-four thousand eight hundred. 

Gen. BixBY. CoL Eiche. in charge of the lake survey, made this 
report. 

Mr. Cooper. I observe on page 16 of that report, dated November 
30, 1908. reported to the Secretary of War January 30, 100!), a little 
less than tAvo months later, and then by the President sent to Con- 
gress August 21. 1911 — I think that is the day we adjourned — the 
Secretar}' of War sent it to the President on that day. Now. (ien- 
eral, I observe on August 21 

Gen. BixBY. On January 21. 1909; sent to the ]*re>*ident Aui>ust 
19, 1911. 

Mr. Cooper. That is over two years. I observe here on page 10 
that there is quite a criticism of the plant there. T have been told 
by an electrician — I was told by him when I went through the plant — 
he said at that time that the machinery that was all right three or 
four years ago had practically become obsolete. Xow, there is some 
\Qvy suggestive language on page 10 of this report. There is a state- 
ment in regard to the Niagara Falls Co. that would seem to indicate 
that that plant is not up to date. Is that so? 

Gen. BixBY. I judge so. 

Mr. Cooper, They do not get more than two-thirds of what they 
ought to get ? 

Gen, BixBY. Well, if they could have gotton mo!<^ funds at the 
start, thej could have gotten a bigger development, but they probably 
went as far as their finances allowed. 

The Chairman. Mr. Edward A. Wickes, president of the Niagara 
Falls Powei- Co., desires to make a statement on this point. There 
being no objection he will proceed. 

Mr. Edward A. Wickes. AVhen these works w^ere i^-ojected our 
first three dynamos produced more alternating current than was 
produced in the United States. We solved every problem that was 
presented to us. The men whose advice we followed were Lord 
Kelvin, Turretini, of (leneva: Mr. Unwin, the dean of the Central 
Institute at London; Mascart, of France; and Colenuin Sellers, of 
America. They were in session for months. The plans that were 
followed were laid down by them and superintended here b}' the most 
eminent body of engineers that we could get. AVe have made no 
error, and when I asked some engineers the other way — they came 
from California — ^hoAv many managed to avoid trouble they said, 
" Why. we copied your methods." Nov.- I make this statement, because 
" bad work " and "■ bad management " have been suggested. There 
was never a time when our work halted for one moment for lack of 
money. AVe started with $2,000,000 and we now have $25,000,000 in 
it; and every step has been under the best advice. I say this that 
you might relieve yourselves from asking questions relative to ab- 
sence of knowledge, 

AVe installed and have maintained our works so as to get the Ijest 
efficiency, the most head, consistent with full regard for scenic beauty. 
If we had put our buildings lower down or at the Fall-, we could 
have used a hio-her head, but, under the advice of the best artists, to 



38 PRESEEVATION OF NIAGARA FALLS. 

avoid iiian-ing the scenery at the Falls, we placed our power house 
and works up river, and carry the water from our wheels by a long 
underground tunnel — all at extra expense and with loss of head: but 
both these losses were deliberately incurred so as to protect scenic 
beauty. To discriminate against us noAv in the distribution of this 
proposed increase, because our head is lower than that of another 
company, is to penalize us for regarding and to reward others for 
disregarding the very object of this proi)osed legislation and of the 
treaty — the preservation of scenic beauty. 

Gen. BixBY. We have in our office no other thought than that 
mentioned by the last speaker. Even in our last reports all we are 
talking about is how it might be done with modern appliances and 
knowledge to get everything that could be gotten out of it. 

Mr. Cooper. This officer says "All this is not intended as a criti- 
cism." That is all. 

Mr. Garner. General, you have been somewhat diverted. 

Mr. Sharp. Mr. Chairman, I move that the committee adjourn. 
It is evident that we can not conclude this hearing this session. 

The CiiAiR^rAx. Very well: we will now recess until 1 o'clock. 

Gen. BixHY. Mr. Chairman, I think that I can say all that is ex- 
pected of me in a very few words. One of the other questions asked 
was whether the 15,600 feet per second should be increased to 20,000 
cubic-foot seconds. So far as navigation and scenic beauty are con- 
cerned, I do not know of anything in my office that shows that the 
increase would seriously affect the two; the effect of the diversion of 
this 4,400 feet around the Falls Avould be practically inappreciable. 
Tlie second question was 

Mr. Gar>;p:r. Is any legislation necessary under the treaty? For 
instance, you have just answered that it would not affect navigation 
or scenic beauty if the full amount under the treaty was taken from 
the other side. 

Gen. BixHY. Yes, sir. Our understanding in the Engineer Office 
has been that there is nothing in the Burton Act that Avould allow the 
Secretary of 'War to divide up that 4,400 cubic feet per second. The 
treaty gives 20,000 cubic feet as a limit, and nobody has been found 
in our office who is willing to say which company the additional 
water is coming to; the joint commission says it is not its business, 
and none of the secretaries will say that the law authorizes him to 
step in; so nobody has a right to say who shall get it; and anj^ action 
we would take in the engineer department Avould be simply to rei)ort 
against anybody taking it. 

Mr. fiARXER. Then, as I understand you. we nuist either perpetu- 
ate this treaty or give the War Department authority to revoke per- 
juits? 

Gen. Bixnv. Oui- office thinks that Congress nmst say how that 
4.400 feet is to be divided and who is going to divide it. Now, as 
i-egards the increase from the old amount — uj) to 20,000 on the 
American side and 80,000 on the Canadian side — it has at least one 
good point, and that is that it does fix a limit on the Canadian side, 
where no limit was before. Whether that SG.OOO feet total diversion 
is going to injure navigation or seriously injure the Falls, is some- 
thing tiiat our office thinks can be judged from the data which we 
l)ut into this last re])ort. which is being printed aiid which is dated 



PRESERVATION OE NIAGARA FALLS, 39 

in June, 1911, we think that report will give you gentlemen in Con- 
gress all the facts so far as they can be put down on paper. One of 
the photographs shows the contrast between the looks of the Horse- 
shoe Falls on three occasions. At one of them the flow is about 60,000 
feet a second greater than it is at the other, and you can see the effect 
in the difference between the photographs. 

The CiiAiRMAX. HoAv soon Avill this last report be printed? 

Gen. BixBY. We are looking for it every day. 

Mr. Garner. Has it been sent to Congress? 

Gen. BixBY. Oh, yes ; it has passed the proofreader. 

Mr. Smith of New York. How do 3^011 account for a lowering 
of 9 inches on the Canadian side and 4 inches (m the American side? 

Gen. BixBY. It is due to the slope of the bed of the stream and to 
the way the water is taken out and to the shape of the Falls. 

Mr, DiFENDERFER. The Falls are about 4 feet lower on one side? 

Gen. BixBY. Yes, sir; and it is due to the force of the Avater and 
the way it is pumped out. 

Mr. S311TH of New York. The photographs show an exposure of the 
crest line of the Horseshoe Falls. You made a suggestion by which 
the water could be spread out, thereby continuing the scenic beauty 
of the Falls. I wish you would explain that plan to the committee. 

Gen. BiXBY. It is ahvays possible from an engineering point of 
view, though sometimes expensiA^e, to regulate the flow of water in 
a rock-bed river like the Niagara River at that point. We could 
construct sills for that part of the river in such a way as to stop the 
present rapid retrogression. We could make the water quite uniform. 
Those things can be done, but they are, of course, very expensive. 
The best we can do is simply to get a little better appearance out of 
the Falls with a lesser quantity of water than we are getting to-day 
by correcting the irregularity of the flow at the borders; but in such 
matters I always go back to my boyhood days when I went to the 
Kauterskill Falls. I suppose as a very small boy the Kauterskill 
looked large. But I went up there some years afterwards, and if I 
would pay the OAvners so much they would turn the water on and let 
me see half as much Avater as I saAv formerly. If I did not pay, they 
AA^ould not turn the AA^ater on. So it is simply a question of AAdiere 
you Avill draAv the line betAAcen no Avater-poAver dcA^elopment and the 
unaltered Falls, and a full Avater-poAver dcA^elopment and no Falls; 
and only Congress can draAv that line Avith the cooperation of 
Canada, 

The Chairman, I belie A-e that ansAvers the questions, 

Mr. Sharp. Mr. Chairman. I move that the committee rise. 

The Chairman. Just a moment. 

Gen. BixBY. I do not think of anything else that I care to say, 
except to re})eat once more that the Engineer Department, of course, 
finds a great deal of trouble and Avorry in supervising the water 
diversions and the water poAvers; but we probably haA^e, at the lake 
surA'ey, as good an organized force as is needed to do the work, and 
so we can do the AAork; and AAhile we do not especialh' AAant it. we 
are not espe(nally objecting to it. If Congress says that the War 
Department should do it, why, avc shall expect to go right along 
doing it. and if the Congress says that the War Department shall 
not do it. and any joint national commission should be selected to 



40 PRESERVATION OF NIAGAKA FALLS, 

do it, why. the commission will be sad and Ave will be happ5\ 
[Laughter/; 

The Chairman. Gen. Bixbv, if you desire to submit, as a part 
of your remarks, any additional statement, the committee will be 
glad to have you do it. We hope at the next meeting Maj. Ladue will 
be here. 

Gen. Bixiiv. And we would be glad if you would put up these 
little remarks into sonie shape so I can look them over. 

Tlie CHATR:NrAN. That will be done. AVe are obliged to vou. (ien. 
Bixby. 

I will say to those present that to-morrow the committee will be 
obliged to take up the annual diplomatic and consular appropriation 
bill, and hence we will adjourn this hearing until Thursday morning 
at 10 o'clock. 

Whereupon the committee adjourned at 1.15 o'clock p. m. until 
Thursday morning at 10 o'clock a. m. 



Committee on Foreign Affairs, 

House of Representatives, 

January 18, 1912. 

STATEMENT OF ROME G. BROWN. FOR NIAGARA FALLS POWER 
CO. AND CANADIAN NIAGARA POWER CO. 

The Chairman. We will hear Mr. Brown this morning. Mr. 
Brown, Avill you state your name, your residence, and whom you re])- 
resent ? 

Mr. Eome G. Brown. I am from Minneapolis, jSIinn. I represent 
here the Niagara Falls Power Co. and the Canadian Niagara Power 
Co. 

Mr. DiKENDEuiER. Of wliicl) Mr. Wickes is pre.^ident ? 

Mr. BitoAVN. Of which Mr. Edward A. AVickes is presidem. (ien- 
tlemen, I appreciate the necessity of brevity in statements. I have 
tried to arrange in as brief a way as possible certain matters for con- 
sideration Avhich. I believe, are important for you to have in mind in 
regard to legislation in carrying out this treaty. In going over my 
summary I shall be A'cry glad to answer any questions that I am 
capable of ansAvering, but if you Avill be patient it may be that I 
shall anticipate your (luestions in presenting my statement. 

I Avill say that Avhen I left Minnesota the thermometer Avas 40 
below zero, but since I came doAvn here T have caught a cold. Avhich. 
like some Congressmen, is not only both reactionai-y and insurgent, 
but it is also progressive. [Laughter.] 

Gentlemen, the concrete question before you, as I understand it. 
is Avhat shall be the nature of a legislatiA-e act under the treaty of 
1900 to take the place of the Burton Act, so called. Now, in making 
up your minds upon the nature of that act you Avould have in mind, 
and Avish to have in mind and consider, certain propositions. You 
would Avant to have in mind Avhat. if any — I am not stating them 
noA\' — Avhat, if any. are or may be the legal rights of those avIio have 
made investments at the Falls. Even if you did not regard fully 
their legal rights, at least you Avould Avant to consider Avhat, if any, 



PBESERVATION OF ^'IAGARA FALLS. 41 

might be the equities of those people who have made their invest- 
ments. 

Mr. DiFENDERFER. AVho gave them their legal rights? 

Mr. Browx. I am coming to that; I said "if any.'" You would 
also want to consider what rights and equities the people generally 
in the locality of the Falls and the general public, as represented by 
the National and State Governments, might have. Now, then, in 
order to have in mind what are — or, if you would not agree with 
me what might be claimed to be — the legal rights or the equities of 
the parties, as well as what might be the equities, rights, and inter- 
ests of the public, it has seemed to be necessary — it certainly might 
be helpful — to In-ing ourselves down to date by a brief summar}' of 
what has taken place prior to this time; and let me give you the 
smnmary. T will try not to be prolix, and some of the details of my 
argument I will hand to the reporter to be inserted as part of mj 
statement. 

No one will disagree Avith me when I say that the important inter- 
ests that we have to protect here are the interests of the American 
investors and of the American public, as paramount, from our view- 
point, to the interests of the Canadian side. Now, way l)ack in the 
nineties there were two interests — and I may say, gentlemen, that the 
interests of the hydraulic company and the Niagara Co. are not in 
conflict and not in dispute; their interests are similar. These two 
interests, prior to the passage of the Burton Act in 1906 and in the 
nineties, acquired on the shores of the Niagara River and appurte- 
nant to the Falls, certain real estate interests, and they became at that 
time riparian owners. I am going to be brief. They became riparian 
owners on the Niagara Eiver at the point of the Falls. Their situa- 
tion then was this : 

The Niagara Co. above the Falls, the hydi-aulic company below 
them but above the Falls, and the State of New York at the Falls — 
all had certain riparian interests imder the law. The Niagara Co. 
acquired by grant from the hydraulic company below them, and 
from the State of New York at the Falls, the express grant and 
privilege (and the law is that such riparian rights are severable and 
can be granted in whole or in part), they acquired the riparian rights 
to do certain things, to wit, this: To go upon their land above the 
Falls and construct their works, including tunnels through the 
hydraulic company's land and through the State's land, and thereby 
use, that is, divert water sufficient to develop 200,000 horsej^ower, 
and to discharge the same below the Falls. Now, then, not only 
from these granted rights, but from the law of riparian rights, these 
companies were at that time advised by their counsel (not myself, 
but I would have told them the same thing) that they had the legal 
right under the law of the land, under the law of the State of New 
York, under the law of property right in this country, they had the 
legal right that could not be disputed or invaded by any man or by 
any Government, to make their structures and enjoy their rights, 
subject to this one qualification : That they must see to it that their 
diversions, whatever they might be, should not be such as unreason- 
ably to interfere with the navigability of the Lakes or of Niagara 
River; and if they did not cause such interference, then neither the 
Government of the United States nor of the State of New York 
had an}' right or authority to prevent them from going ahead Avith 



42 PKESEKVATIUX Ol' ^lAGAKA FALLS. 

their improvements and enjoying fol•e^■e^• the beneficial use to which 
they were entitled under their riparian rights. 

Mv. Sharp. "What, in your judgment, woukl the vested interests 
to which you refer — woukl there be any (;omphiint on their part if 
the Burton Act was reenacted, rather than if the whole amount 
were used, as under the treaty? 

Mr. Brown. I would say yes. Their vested-property rights would 
be interfered with. But I Avish to say this: I am not here to argue 
to you against your right to legislate at all nor to try to cram down your 
throats what I think the law is. I am only trying to show you the 
circumstances under which these companies went ahead, and I want 
you to understand that what I shall urge u])on you is to consider the 
equities of these companies, as they exist, under all the circumstances, 
to have proper regard for their rights, at least tlieir equities, in fix- 
ing the terms of the proposed statute. 

Mr. DirENDERrEi;. In a nutshell, then, 3 our contention is that this 
committee has no right to enact any law ? 

Mr. Brown. On that theory I think this conunittee has no right to 
enact any law. 

Mr. DiFENOERrER. Has Congress, then, any right to pass any law? 

Mr. Brown. I think Congress has a right to ])ass a law within 
certain limits. 

Mr. DjFENDEHiER. That is what the conunittee would like to hear. 

Mr. Leoare. You may not want to answer my question at this time, 
but just keep it in mind. Having these vested rights, if Congress 
should pass a law fixing rates would it not be retroactive? 

Mr. Brown. I was not going to go into the matter of rates until 
later, but I think it woukl not properly be called "' retroactive." If 
I understand the essence of your question I would say, in regard to 
rates, that it would not only be unwise for Congress to attempt to 
fix rates, but I think that such an attempt would be invalid and in- 
effectual. That i)ower so far as it exists belongs to the State of New 
York. 

Mr. Legare. That answers my question. 

Mr. Brown. I have certain things that I want to follow along and 
draw conclusions from. 

Mr. Levy. Is it your contention that the riparian owners, by the 
purchase of the adjacent land, acquired the right to divert any water 
that they might desire to divert, with the consideration that the in- 
terests of navigation should not be interfered with, no matter what 
became of the Falls? 

Mr. Brown. As purely a question of legal right, yes, sir; no mat- 
ter what became of the JFalls. Now, I am going to put into the rec- 
ord the summary of a 90-page argument on this point. 

The Chairman. The reporter will incorporate it in the record. 

Mr. Brown. I w ant this printed as my summary of the law at this 
point : 

LAW AS TO BIPABIAN RIGHTS — LIMITATIONS OF FEDERAL CONTROL — LIMITATIONS OF 
STATE CONTROL — PROPOSITIONS STATED AND LEADING CASES CITED. 

Rules of lO'iv as to Federal control. 

1. That the authority for Federal control of fresh navigable streams and 
waters in the United States, which at the same time defines and limits such con- 
trol, arises solely from that power which has been expressly reserved to the 



1 



TKESEKVATION OK NIAGARA FALLvS. 43 

Uiiit(Hl States by the Federal Coustitiitiou — the power to regulate coiiimerce 
between the several States and foreign nations. 

2. That this iwwer of control was expressly reserved to the Federal Govern- 
ment by the States originally adopting the Federal Constitution and by all 
States since admitted under that Constitution: and, subject to this specific 
power so reserved in the Federal Government, there has passed over to those 
States, upon their entry into the Union, all powers and interest, whether of 
ownership or of control, now or formerly belonging to the Federal (iovernment. 
in the beds and waters of such navigable streams, and the Federal Government 
has since retained, and still retains, eitlier as against any claim by a State 
or by an individual riparian, or both, only the specific paramount right of con- 
trol for the specific and limited pnrpose of commerce — that is, of navigation. 
Moreover, this Federal power of control is purely a sovereign power of control 
for a specified pnl)lic use, and does not include, and can not l)e extended to, any 
element of a proprietary right or interest. 

3. That, subject to this pnrely sovereign right of control of navigation, all 
right, title, and interest, sovereign and propi-ietary, belongs to the States or to 
individual riparian owners, or both: and it is not within the Federal ;uithority 
or power, eitlier judicial or legislative, to fix or dt^teruiine. as between n State 
and an individn;il owner, the limitalions between State and individual owner- 
ship or control of water powers. The rights and obligations, .is between a 
State and an individual owner, are fixed by the law of property .-is established 
by the decisions of the State supreme couit in the State in ipiestiou. This law 
of property, as so fixed in any State, is. as to streams in that State, binding 
npon the Federal (lOvernment and its Supreme Court. 

Rules of I'lir (IS !<> State control iinil as to nstefl i>roitertii viijhtx of riimrian 

oirtier.^. 

1. The title and power of control by the State over the beds and waters of 
navigable streams are not in any degree prtiiirietary in nature or extent. They 
are limited to a holding in trust as a .sovereign ff)r the specific purjiose of pro- 
tecting a pulilie use. to wit. navigation and certain allied public uses. 

2. The title and the power of the State are subject only to the Federal para- 
mount ix)wer of control as established and defined a.^ above demonstrated. 
They are limited also by the private proprietary right of the riparian as fixed 
by tlie law of the State. 

3. The private riparian owner owns and retains all and the only proprietary 
title, right, and interest, either to the beds and waters of such streams or to 
the nsufruct thereof. He has the proprietary right to the beneficial use of the 
flow of the waters in connection with the natural head and fall upon or oppo- 
site his riparian land and to the whole thereof: he has a proprietary right to 
utilize the bed and waters for the development of power and for the operation 
of water-power plants. This right belongs to him jure naturte — that is. 
because it is a natural resource and right belonging to and appurtenant to 
his riparian land and a part thereof. And this private proprietary right is 
subject only to the sovereign right of control by the Federal and State Govern- 
ments for the public use of navigation. 

4. As between the State and the riparian owner, the sovereign iiower of con- 
trol of the former ends where the proprietary right of the latter begins; and 
the private right exists uii to the point beyond which it would bo inconsistent with 
the specific and limited public right. This private proprietary right of the 
riparian is the same, whether the title to the bed of the stream, either below high 
water or behjw low-water mark, is said to be held by the State or by the 
riparian. The attempted distinction between the riparian rights, on the basis of 
the riparian's having a mere easement instead of a title, is, "^o far as these 
questions are concerned, purely speculative. 

The above rules of law are established by the following leading cases : 
Water Power Co. v. Water Board (168 U. S., 358-365) ; Hobart v. Hall (174 

Fed. Rep., 433) ; Hall v. Hobart (108 C. C. A. Rep., 348) ; United States r. 

Chandler-Dunbar Co. (209 U. S., 447) ; People l\ Mould (37 App. Div., 35, 30) : 

Peoi>le ex rel. Niagara Falls Hydraulic P. & M. Co. i'. Smith (70 App. Div., 543; 

affirmed, 175 N. Y., 469) ; Niagara County I. & W. S. Co. v. College Heights L. 

Co. (Ill App. Div., 770, 772) ; Sweet v. Gity of Syracuse (120 N. Y., 335) ; Smith 



44 PRESERVATION' OF NIAGARA FALLS. 

r. KocliPSter t.r»li N. Y.. 474) : Kiiiiisfy /•. IM. Co. (1.",:! X. V.. Tlti : r.ionidiavtMi r 
Siuitli (ISS Ni. Y.. 74). 

See also decision of WlscDiisin Sui»reiiie ("ouit (Jan. .'Ut, l!tl2» in Stat*> ex re). 
Wassan Ry. Co. r. Bancroft (Atty. den.. — X. W. Uep., — ). 

Mr. Brown. The ChancUer-Duiibar caise (209 U. S.) and the Xew 
York oa.se of People r. Smith (TO App. Div.), above cited, expre^>'sly 
hold tliat the rules of law aljove stated apply as well to international- 
boundary .streams as to other streams: and tlie case of People v. 
Smith expres.sly holds the riparian rights on the Niagara lliver at 
the Falls to be a.s above stated. These rules of property rights were 
relied upon by the oAvners of the power plants at Niagara Falls when 
they made tlieir original investments and constructed their woi-ks 
Avith the capacities which have since been maintained. 

Such is a summary of the law upon this subject; and it is so well 
settled that these rules. of law are irow recognized not only by the 
P^ederal Supreme Court Ijut by the highest courts of every State in 
which the common-law principles of riparian rights are recognized. 
This includes substantially all the States lying in whole or in part 
east of the Mississippi River. It does not include those far western 
States wdiich never had any law of riparian rights, but where the law 
oi prior occupation or prior appropriation prevails, such as Colo- 
rado. Cases from such States are not authority in either Minnesota 
or New York. The Federal courts recomuze and enforce tlie law 
of propeity rights on these questions according as they find the local 
law to have l>een esta))lished by the courts of the respective States; 
and the United States Supreme Court has so expressly held in 108 
U. S., 358, and other cases. So the Federal court would enforce 
riparian rights at Niagara Falls as such rights have been established 
by the New York courts. In passing I would say that the same 
rules of law prevail in Caniida. the only diflerence betA\ecn the two 
ccjiintries being that here vested p)-o])erty rights are. through the 
courts, protected under the Constitution against cucroachmerits by 
the legislature of either the State or the Nation, while in Canada ihe 
Parliament can not be so restrained. 

The right that Congress has — now, gentlemen. I talked about this 
matter before the National Waterways Commission the other day. 
and one of the gentlemen said: " That is merely your theory, isn't it, 
Mr. Brown'!'" So uiuch the less merely my theory, it is the state- 
ment of the law that iias been made by the United States Su])reme 
Court, and the courts have had this decision before them for years. 
I demonstrate this proposition as a rule of laAv, to wit: That the 
power that the Federal Government has oNer navigable streams is for 
the specific purpose of navigation; it gets that power expressl}^ from 
the clause in the Constitution of the United States giving Congress 
the power to regulate commerce. It does not own the waters: it 
does not own the bed; it has no proprietary interests; it has only a 
right of control in its sovereign capacity for a limited and specific 
purpose, to wit, for navigation. It is a power simi)ly to i)revent 
unreasonable interference with navigation. That is the law. 

Now, then, every bit of interest in or power over these streams and 
their beds, except this limited right of the Federal Government (this 
is not my statement ; it is the statement of the United States Supreme 
Court — 168 U. S., 38.")). has passed to and is retained by either the 
State or individuals, or both, as the case may be; it all belongs to one 



i 



PKESEEVATION OF NIAGARA FALLS. 45 

or the other; and if yoii want to find where the right of the State, 
New York, for instance, and the rights of the riparian owners begin 
and end the Federal Supreme -Court says you shall go to the law of 
property rights of the State as shown by the State decisions. The 
Federal Government having reserved only the paramount power to 
control navigation, everything else hase gone either to the State or 
to the riparian owners; and in the determination of how that which 
is left is or shall be divided between the two neither the Federal 
Government nor the Federal Supreme Court has anything to say. 

Consequently, Ave have this situation; that if we want to find out 
Avhat the riparian rights are in New York we go to the New York 
decisions. Under the law the Federal Government has no more' 
to do with " scenic beauty " than it has to do wdth the color of my 
hair. 

Mr. DiFENDERFER. You liavcn't any. 

Mr. Brown. That's right — neither hair nor . scenic beauty. 
fLaughter.] 

Mr. Levy. Aside from this proposition of navigability, do you 
think it is aifected as a boundary stream ? 

Mr. Brown. That is incidental. There is one thing that is certain : 
If a thing can not affect the navigability of a stream is can not affect 
<he matter of boundary. The matter of boundary is not the question 
of there being water or there not being water. Wlien the stream as 
such is the boundary, there international laws fixes the boundary 
at the thalweg, that is, the deep-water line, but in this case at Niagara 
Falls it is fixed at a certain line surveyed and described as any line. 
Suppose tlie river dried up, is not the boundary there just the same? 

Mr. Flood. Would not the Government have a right of control 
over it as a matter of public defense? 

Mr. Brown. If so, then only to the extent that might be reasonably 
jiecessary for that purpose, 

Mr. Levy. Mr. Chairman, following up my question: If it should 
dry up it would still be a boundary, but do you think if Canada or 
the United States had no treaty as to how much powder could be di- 
verted and used — suppose that the United States or the State of New 
York should give to some power company the absolute right to divert 
the whole stream over there, don't you think it might bring up the 
discussion of rights? 

Mr. Brown. It probably would — the question of private rights, 
international rights, and the right of the United States or New York 
to attempt such a grant. 

Mr. DiFENDERFER. How loug havc you been the attorney for the 
companies you are representing here to-day? 

Mr. Brown. I will tell you frankly that as a direct attorney for 
these companies the first work I did was last fall ; but that is not the 
tmly experience I have had in these questions. 

Mr. DiFENDERFER. I would like to ask you why this question was 
not brought up in 1906? 

Mr. Brown. Let me say this: It w^as brought up, and you will read 
in the report of those hearings much mention of this subject; in the 
mass of other matter, however, this question was too much lost 
sight of. 

28305—12 i 



46 PRESERVATION OF NIAG.UIA FALLS. 

Mr. Kendall. Then, yoii hold that if your coinpany was deprived 
of the right to use that j)OAver. if there was any power to deprive you 
of that right, you couUl hold that po\ter responsible? 

Mr. Brown. Yes. sir; but we would not have to be comjjensated for 
it until we demanded compensation. We are not here demanding 
compensation, nor demanding at this time recognition of our full 
rights of diversion. We ask that, up to the treatj^ amounts, our rights 
be respected. Xow, that being the law of New York, we tind in the 
decision of the appellate division of the New York courts not only 
these propositions of law supported generally, but these proposi- 
tions laid down as to this very river at this very point; which de- 
cisions have been affirmed by the New York court of appeals. The 
principles that 1 have stated are reaffirmed, confirmed: that these 
companies — not vaguely some companies — but these companies by 
name ac(piired their rights to make these diversions by virtue of 
their riparian ownership, and that those are vested property rights. 
The question of their naked fee in the bed only going to high-Avater 
mark does not affect that conclusion, because the State of New York 
holds, not a proprietary interest in the fee, but only an interest 
in trust as a sovereign to protect navigation: and subject to that, 
their rights of uses of the Avaters in the river are just the same as 
if their fee extended to the middle: and therefore these owners have 
these rights subject onh' to the right of th<' State of New York and 
the Federal Government to control navigation; and they hold those 
rights as vested property rights. 

Why, gentlemen, some time ago they had assessed one company in 
NeAv York on the basis that it got its rights to the boneficial use 
of the water for power b}' virtue of its riparian rights and that com- 
pany said, "No; we don't get this by reason of our riparian rights, 
but by virtue of a special privilege or franchise from the State, 
which is not assessable"; but the highest courts of New^ York (TO 
App. Div.. 548: 175 N. Y.. 469) said: "No: you get it solely as a 
propert}^ right. It is part of your riparian rights." Now. gentlemen, 
the United States Supreme Court, in the case of another international 
boundarv stream, has decided these questions the same wav. (Note 
the Chandler-Dunbar case, on the Sault Ste. Marie, 209 U." S., 447.) 
These cases are all cited in my summary of the law on this point. 
Gentlemen, I am not here to pound you upon the law, but simply to 
tell you what rights these companies relied upon. I say they knew 
what their riparian rights Avere. Also, out of abundance of precau- 
tion (not that they doubted their rights, but as investors they had to 
borrow money and doubly satisfy those who financed their enter 
prise), they got patents and grants from the State of New York, 
by conveyance and by legislatiA^e grants, which not only confirmed 
them in their riparian rights. Avhich they claimed, but also gave to 
them such rights in the State Park lands next the Falls as Avere nec- 
essary to allow them to make a diversion by tunnels extending belov, 
the Falls. Relying then, gentlemen, upon these riparian rights and 
npon the rights acquired from the State of Ncav York, these peo])le 
first had a series of iuA^estigations made before they started Avork. 

Mr. Garner. Tt is 12 o'clock, and I assume there are a number of 
gentlemen who want to get away. It is important to be on the floor 
of the House until Ave iret starter!. We can get a wav bv 1.30. 



PRESERVATION OF NIAGARA FALLS. 47 

The Chairman. AVe will let Mr. Brown finish. 

Mr. Legare. Your companies applied to the Secretary of AA'ar for 
a permit subsequent to the enactment of the Burton law? 

Mr. Broa\ X. I do not know whether they did or not, but 

Mr. Legare. Well, you are operating now under a permit? 

Mr. Broavn. Under this Burton law. However, the fact that we 
complied with that law does not change our legal rights. 

Mr. Legare. And those permits are revocable. 

]Mr. Garner. I understand your argument now is based upon the 
conditions existing before the Burton law was passed? 

Mr. Brow^n. Yes, sir. The position in which these parties were 
before the Burton law was passed; and I want to show you that 
these legal rights, or at least the equities of these companies leased 
upon their legal rights, were intended to be i-egarded and protected 
by the treaty of 1900. 

But are you going to refuse to consider these equities any less than 
did the Burton Act? Or any less than did the treaty? Will you 
refuse, at least, to take into consideration the equities of the in- 
vestors at the Falls? Are you going to insist on passing an act 
that is so inelastic that by its very inelasticity it will prevent the 
rights or equities of these companies from even being considered by 
the State of New York or the Secretary of War, or by anybody else 
who ma,y have the power of distribution of this power? 

Mr. Garner. This is a most interesting argument, because upon 
the legal rights and equities of these companies depends whether or 
not we shall determine how much shall be generated from Niagara 
Falls. 

Be Chairman. The committee will now^ take a recess until 1 
;k. 

Whereupon, at 12 o'clock m., the committee took a recess until 
1 o'clock. 

after recess. 

The committee met at 1 o'clock p. in. 

The CiiAiR^MAN. You can proceed. Mr. Brown. 

Mr. Rome G. Brown. Gentlemen, to resume, and in order to get 
the connections: I stated this morning that Ave were relying upon 
the law of riparian rights recognized as belonging to people in 
the situation in which the two American companies were — recog- 
nized, not only by the National Supreme Court, but by the legisla- 
ture and courts of the State of Ncav York, the New York courts 
being, according to the decisions of our Federal Supreme Court, the 
courts Avhich fix the rights of the riparian owner. 

That law gives to the riparian owner the right to the beneficial 
use of all the water power, subject only to the right of the State to 
control for navigation, and all those rights are subject to the para- 
mount right of the Federal Goveniment — not plenary, not unlim- 
nized not only by the National Supreme Court, but by the legisla- 
control onl}^ so far as necessary to prevent unreasonable interference 
with the navigation of the river. 

Let me say here: I have put in for your reference a summary of 
a 90-page argument on these questions written a month ago. The 
full argument is too long to incorporate in this record, and I have 



•18 PBESERVATION OF NIAGAEA FALLS. 

handed each moiuber of this committee a copy of the complete argu- 
ment. That argument will convince any lawyer or layman that my 
conclusions are right. 

Relying upon that law of riparian rights and upon those rights 
which were gotten from the State of Xew York, including the legis- 
lative grant to the Niagara Co., for instance, of the right to di- 
vert and use and have the beneficial use of water sufficient to make 
200,000 horsepower, the Niagara Co. went ahead to make its con- 
struction. This was in the nineties. The Hydraulic Co. after- 
wards nu\de its construction. Gentlemen, before the Niagara Co. 
started constructicm, what further did they do? Now, all this 
discussion is to show j^ou what was the position of these parties in 
190G, when the Burton Act was passed; for 3'ou can not very well 
tell what you want to do with the Burton Act unless you get the 
situation at that time. Did this company go ahead and construct a 
200,000-horsepower plant, disregarding the consideration that they 
were subject to the rights of navigation? No. I know more par- 
ticularly about the Niagara Co. than the other company. They 
hired outside engineers and made investigations running through 
four years to determine, so far as experts and engineers could deter- 
mine, what might be the effect of that development upon naviga- 
tion, which was really all they had to look out for. But thej'^ went 
further than the law required, and sent for these engineers to tell 
them what effect it would have upon the scenic beauty of the Falls; 
and not only that, gentlemen — not only the effect of the diversion 
of water upon scenic beaut}^ and upon navigability — but also what 
should be the effect upon the general landscape view; what structures 
would least mar the beauty of the landscape. They engaged the 
services of the best engineers and landscape artists in the world — I 
am spealdng now particularly of the Niagara Co. — to determine 
not only the effect upon the scenic beauty of the diversion of the 
water itself, but also to determine how best to preserve the scenic 
beauty of the Falls by making their constructions, their general land- 
scape view, the best to co'nform with and the least to injure the 
natural scenic grandeur of the entire locality. They did all that 
before they turned a shovel of soil. 

They found this; That with the Hydraulic Co. using api)roxi- 
mately 9.500 cubic feet per second, the plan which they then had in 
view, and the Niagara Co. using 10,000 cubic feet per second, the 
navigability of the lake and river would not be affected at all, and 
the integrity of the river as a boundary stream would not be affected 
at all. Then the company's engineers, having investigated the ques- 
tion of the effect of the diversion upon scenic beauty, reported, say- 
ing: 

This would not appreciably affect the api)earance of the Falls. 

The best landscape artists in the United States, after going over the 
matter at the request of the Niagara Co., said : 

Gentlemen, you have come to us, saying that, whatever your legal rights or 
legal obligations, you desire to make a structure for the beneficial use of this 
water power which shall, so far as possible, be compatible with the general 
scenic grandeur of the Falls. If you put the power house down here, it injures 
to some extent the landscape. If you improve this way and shorten the head- 
race or the tailrace, you make yovu* structure so much more injurious to the 
landscape and scenic beauties; but if you will take your water up from this 



I 



PRESEEVATION OF NIAGARA FALLS. 49 

place, and tlieu from your turbines carry it by a tunnel underground, you will 
thereby the least possible afl'ect tbe scenic grandeur of the Falls. 

That is what the engineers said. That is what the landscape 
artists said. What did our people do? Gentlemen, what are the 
facts? What did our people do? Whj', our engineer said : 

That is all right. The artists have a great eye for beauty, but they do not 
consider the sacrifice of water rwwer. 

T^et me remind you that Mr. McKim and Mr. Millet were after- 
wards members of the national committee to investigate this very 
subject. The engineers said: 

Here you are going to lose, because you carry the water too far. because you 
don't put the works down nearer the crest : and because you have done this to 
preserve scenic beauty you will have to lose some of the head and fall you 
would otherwise have. 

In other words, gentlemen, to ctit the story short, in order to take 
the water around at such a distance from their works, as they were 
operating above, and discharging below, in order to preserve the 
scenic grandeur of the Falls, they had to lose use of some of the 
available head. And what is the result ? That out of a possible head 
of 190 or 200 feet the Niagara Co. from that time to this spends^ 
wastes, as some say — 50 or (50 feet in order to get the Avater down and 
around for the sole purpose of preserving scenic beauty ; and they 
have only 140 instead of 190 feet, speaking in round figures. 

Why?* Because they constructed in a method which at that time 
was, and ever since has been, the method of operation there which 
is most consistent with scenic beauty. That is what they did. That 
is what they were advised, and every single engineering and land- 
scape advice that was given by their engineers and artists has since 
been confirmed by every investigation of the United States Govern- 
ment survey, Avhich investigations had not then been made. 

Under those circumstances they went ahead and made tlieir con- 
struction; not to divert Avater to make their authorized amount 
200,000 horsepower, but approximately 100,000 horsepower. The 
Hj'draulic Co. also constructed, not to the full capacity allowed and 
granted by the State of New York, but with a lesser capacity con- 
sistent with preserving scenic beauty. Gentlemen, let me recall right 
here — I attribute it to a misunderstanding, to a lack of knowledge of 
the history of this thing — that some person or some member of this 
committee even, now says— or that even Gen. Bixby says — that if 
further diversion of water is allowed it should be allowed to the com- 
panies in position to get the most horsepower out of every cubic foot 
of water. Why ? When the whole basis of this thing is to preserve 
scenic beauty? Gentlemen, the Niagara Co. has, mainly for the pur- 
pose of protecting scenic beauty, built its plant so that it can onlv 
get 140 out of 190 feet available head. You, in legislating to carry 
out the provisions of a treaty which was entered into solely for the 
purpose of protecting scenic grandeur are asked to take the water 
which we say belongs to us, in equity at least if not in law. and dis- 
tribute it to somebody else who is operating or to somebody else Avho 
will construct and operate, comparatively regardless of scenic beauty. 

Our very sacrifice for the cause of scenic beauty, our regard for the 
very thing which was the object of this treaty, is made the basis of 
discriminating against us and in favor of those who were more 



50 PRESERVATIOX OF ^'IAOTARA FALI^S. 

selfish and less patriotic than we. Right here note that Gen. Bixby 
qualifies his statement by saying that his advice for any such discrim- 
ination is purely from a technical engineering viewpoint, without 
leference to the question of scenic beauty. He protests that consid- 
ering everything, including the equities of the Niagara Falls Power 
Co.. he would not urge any company to be preferred over them. His 
department in their official report (S. Doc. No. 105, p. IG) says that 
an alloAvance to that company to divert an amount sufficient properly 
to operate their plant to the limit of its present capacity "may be 
regarded as a simple act of justice." Again, after reviewing the his- 
tory of the Niagara Falls Power Co. construction, its regard for 
scenic beauty, and the fact that it had installed to the capacity of 
100,000 horsepow^er (one-half of its right under its grant) and the 
fact that the 8,600 limit under the Burton Act was not sufficient to 
run its plant as installed and operated before that act was passed, the 
same rei')ort says (p. 139) : 

The (lesir;il)ilit.v, as well as tlu» justice, of iuiiendin.;j; the Kurton Act so 
as to permit the Niagara Falls Power ('o. to divert water to the full cai)acity 
of its rallrace tunnel are plain. 

In view of the intimate bearing of this investigation upon the interests of 
the company, and as an aclaiowledgment of the helpful cooperation of the 
comijany, it is believetl to l)e advisable to furnisli tlie company with a copy 
of this report and jiermission to do so is requested. 

Under the circumstances stated, the American investors, the 
Niagara Co. and the Hydraulic Co.. prior to 1906 made, com- 
pleted, and operated their plants — the Niagara Co. to the ca- 
pacity w'hich has ever since been maintained ; the Hydraulic Co. 
completing its installation, but, as I understand it. not at first- 
operating to tlie full capacity; but rieither of them ever installing 
or operating to the full amount authorized by their riparian rights 
and by their grants from the State of New Yoi'k. The Niagara Co. 
had regard for scenic beauty. The question of scenic beauty having 
then been solved by their engineers, has also since been solved in 
the same way by the Government engineers. 

Then, after they had done that, somebody, along in 1904 or 1905, 
spread an epidemic of agitation throughout the country, and the re- 
sult "vvas an injustice. It was an agitaticn that was based entirely 
iq:)on disregard of the laAV, on ignorance and disregard of the facts, 
and let me say. in some ([uarters, on misstatement of facts. The 
result Avas that there came a feeling in Congress that scenic grandeur 
Avas in danger and that further diversions should be restrained. 
Therefore, the Burton Act was passed, and it was passed ujxm this 
basis — as shown, not only in its terms, but also in the proceedings 
that led up to its passage — that these people upon the American 
side, having made these investments, under the circumstances I 
have stated, their rights, at least to a certain extent, gentlemen, 
should be regarded first. 

AVith this explanation, gentlemen, I appeal to you. The people, 
tlirough you as their representatives, are supposed to have a regard 
for property rights and for investments made in reliance upon prop- 
erty rights. Upim the Canadian side investments Avere made, and 
there Avas an arrangement made upon the Canadian side Avith these 
different companies of Avhich the substantial effect Avas, that half of 
the poAver that Avas produced upon that side should be reserA^ed for 



I'KESKKVATIOX OF XIAtiAKA FALLS. 51 

use in Canada. The installations that had been made on the Cana- 
dian side did not exceed the amount of :56,000, as fixed by the treaty 
later, but they -were planned for about that amount. Just before the 
Burton Act was passed these facts were found : That on the American 
side the plant of the Xiagara Co. had been installed with a capacity 
of about 10,000 cubic feet per second, but at one particular time it 
was found that that particular company was getting along with 
about 8,600 cubic feet per second. It was found that that 8,600 cubic 
feet per second, assuming the use to have been an average use, with 
other amounts then actually used, made up 15,600, and that with 
those amounts they could probably run along for a year or two. 
So the Burton Act fixed 15,600 as a total limit and 8,600 as the limit 
for an}^ one consumer. It Was also thought that if too wide per- 
mission for transmission to this side was given to Canada it would 
encourage diversions on the Canadian side, and that, therefore, that 
would have to be restricted, and thereby' further help scenic beauty. 
Thev made the restriction of importation 160,000 horsepower, which 
is equivalent to the use of about 10,000 cubic feet a second. The 
Burton Act provided for the negotiation of the treat3^ That act of 
1906 was intended only as a modus vivendi until all questions could 
be investigated and settled by the Government engineers and a 
treaty negotiated fixing the limits of diversion, not temporarily on 
the basis of rough estimate, but permanently on the basis of demon- 
stration. The Burton Act was the best guess that could be made at 
the time it was passed. Its effect, however, was that what should 
have been 20,000 was made 15,600 (the total diversion on this side) 
and what should have been 10,000 was made 8,600 (the limit to one 
consumer). The companies submitted, at a loss, but because it was 
supposed to be temporary. The United States engineer tells you 
that both of these companies have observed the limits and obe^^ed 
that act right along although it took four years before the treaty 
was promulgated. Every single finding of the engineers and of the 
landscape artists of this compan3\ upon the basis of which they had 
constructed their works, was found by the Government engineers 
and artists to be right : that with the total diversion of 20,000 feet 
there was no effect upon navigation or upon the river as a boundary 
stream, and that there was no appreciable injury to scenic grandeur. 
Upon the basis of those facts so found, the two countries — Senator 
Elihu Root acting for this country and Ambassador Brj'^ce for Great 
Britain — made the treaty of 1909. 

What did the treaty do? The very purpose of tlie treaty was to 
promote scenic grandeur. It says (Art. V) : 

It is the desire of hotli parties to acconiplisli this oli.jcct with thf li-jist pos.sihlf 
injury (o liivestuieiits whicli liave already been made in the construction of 
)to\ver i)lants on tlie United States side of tlie river under grants of authority 
from tlie State of New Yoi-k or on the Canadian side of the river under license 
authorized by the Dominion of Canada and the Province of Ontario. 

The "object " was the limitation of the diversion of waters to pro- 
tect scenic gi-andeur. The representatives of these two nations found 
upon investigation these facts to be true: That under all the cir- 
cumstances the total diversion of 5(j,000 cubic feet per second was 
not too large— that that amount, under all the circumstances, consider- 
ing tlie amount that was being taken by the Chicago Drainage Canal 
Co., was about the proper amount. They further found that the 



52 PRESERVATION OF N'lAGARA FALLS. 

Iwo users upon the American side who had made their investments 
should have at least 20.000 cubic feet per second — that is. 10.000 for 
the Niagara Co.. 0,500 for the Hydraulic Co., and 500 for another 
company. 

,Alr. (Jarxf-r. ^Vho gave them that assurance? 

Air. Brown. It was given them b}' the facts reported by the Gov- 
eniDicnt engineers and International AVaterways Commission. It 
was also found that the hydraulic company had brought their plant 
up to the contem])lated cai)acity and that iji order to operate it on an 
economical basis it Avould require about 1>.500 cubic feet. You take 
the (j.500 that the hvdraulic compan-\ had had under the Burton Act 
and add 3,000 to that and it makes 0.500. You take the S.C'OO allowed 
the Niagara company under the Burton Act and add to it to the 1,400 
and it makes 10,000; there is just the difference between the 15,000 
in the Burton Act and the treaty amount of "20.000. That was one 
of the main considerations of making it 20,000 on this side. It was 
the main consideration of fixing it down as low as 20,000, because up 
to that point it was considered that these companies had not only 
their legal rights, but they had equities. This treaty was made iu 
1000 and promulgated in 1010. Nobody ever supposed or claimed 
that the Burton Act was intended as anything more than a temporary 
measure to govern for the three 3'ears necessary to get the informa- 
tion for thelbasis of a treaty and to make the treaty. 

Then after this treaty was made, these companies came in and 
asked for their rights under the treaty. Several joint resolutions 
were introduced and amendments were proposed to bring them in 
line with the treaty, but. on account of a mix-up that always occurs 
when full hearings are not had. the Burton Act has simply been car- 
ried along; and, although the treaty (which was contemplated by 
the Burton Act to take the place of the temporary provisions of that 
act) has been made, the Burton Act is still the statute that controls 
these limitations. As a precautionary measure the Burton Act cast 
every doubt against the investor. But you now have a treaty made 
upon investigations which show the results as I have stated : and 
the proposition now before you is: AA^hat sort of a statute are you 
going to enact to carry out that treaty? 

Mr. DiFENOERFER. You liavc referred to the Hvdraulic Power Co. 
Is that known also as the Schoellkopf Co.? 

Air. Brown. Yes, sir. 

Mr. DiFENDERFKR. Is it uot truc that they have an open canal 
through which they create their power? 

Mr. Brown. I understand that is true. 

Mr. DiFENnERFEu. My reason for asking that was to know whether 
it would add to tlie scenic beauty of Niagara Falls to have an open 
canal. 

Mr. Brown. I wish you would discuss that Avith the Hydraulic 
people. I represent the Niagara Co. AA^e have no connection or 
agreement with the Hydraulic Co., but both know the scientific fact 
that, in order to operate economically under present installations, 
we need 1,400 cubic feet per second more and they need 3,000 cubic 
feet per second more. AA^e would have no conflict with them on tliis 
question. If you should leave this question to these two companies 
we would agree. 

Mr. DiFENDERFER. No doubt. 



PRESERVATION OF NIAGARA FALLS. 53 

Mr. Brown. Don't make an act so inelastic that aUhoug-h these 
companies could come together you would have put it out of their 
power, or of anybody for them, to make a proper division, and ex- 
clude the Niagara Co. without even a chance to present its claims. 

Mr. Garner. You speak about the posible inelasticity of the pro- 
posed act. Suppose we should go ahead and give you the full power 
that you are entitled to under the treaty; you would then come in 
Avith an additional claim, no doubt, that you had vested interests 
and could take all the power. AMiat. then, about the inelasticity of 
the act ? 

Mr. Brown. I^et me call your attention to that. Our works 
(speaking for the Niagara company, which is now limited to a diver- 
sion of 8,000 feet per second), from a time long before the Burton 
Act was introduced, have been maintained with their present capac- 
ity — a capacity well within our legal and equitable rights. For that 
capacity 10.000 feet is not a maximum but a moderate amount. 
We have not. since the Burton Act, increased our capacity for the 
purpose of creating a use for the extra amount that we ask for. 

Gentlemen, we do not ask you to put into th.is act that Ave should 
have control of this 4,400 feet more, nor any part of it. because we say 
that is a detail which you don't Avant to go into. On the other hand, 
while not making it so specific as that, we don't Avant you to make 
an act so inelastic that we can not go before a proper tribunal and 
have our equities, at least, considered. 

Mr. Garner. But would it be elastic if we let the Burton Act pass 
out of existence and then give you a new act alloAving you the use 
of the entire power? 

Mr. Broavn. If the proposed act makes any limitations, then, under 
the circumstances Avhich have been here shown to exist and which now 
appear in the United States survey reports, it seems to me that the 
limitations of the act should be the same as the limitations of the 
treaty. 

Mr. Garner. It Avould be inelastic, then, if it Avere coequal Avith 
the terms of the treaty; there would not be any change at all. 

Mr. Broavn. I see your point. "We don't ask to receive all the 
extra amount. "\Ye want, at least, that Ave should have a chance to be 
considered in the distriluition. There is no doubt tliat this extra 4.400 
feet should be alloAved. Noav, then, whether it shall be to some new 
industry or the Niagara Co. in part or alone or the Hydraulic 
Co. in part or alone. Avho shall get it, and in what proi)ortions, 
I say that question should be left, we will say. for instance, to the 
Secretary of War to determine, after a hearing. By the express 
terms of the act he should be alloAved to take into consideration the 
legal rights and the equities of the present investors, Avhatever he 
shall find them to be. and also, of course, the interests of the public 
and all interests. I Avould like to come down to the question of Avliat 
the proposed act should ])rovide. 

The Citaikman. Come down to the legislation before the com- 
mittee. 

Mr. Broavn. The legislation before you, it seems to me. gentlemen, 
should, in the first place, add 4.400 feet more, so as to make 20,000 
feet the total limit on the American side. That is the first ])roposi- 
tion. Why? Because it has l>een shoAvn by the re])orts of these sur- 
veys and stated to you orally on Tuesday by Gen. Bixby as his con- 



54 Plti:SEHVATU)N CJ' NIAGARA FALLS. 

clusidii tl);U thai wouKl not have any ertWt upon navi«j;alion. nor upon 
the stream as a boundarv line, nor even upon the scenic- beauty of tlie 
falls. It would have no effect — hardly measurable, nuich less per- 
ceptible, on the American Falls. 

Mr. Gakxer. AA'ould it be possible for the 4,400 cubic feet extra to 
i)ecome the property or right of any other company besides the two 
that are now operating? 

Mr. Brown-. You ask me mv ])resent opinion as a pure matter of 
law ( 

Mr. Garner. Yes. 

Mr. Brown. I say frankly, no. Gentlemen, don't misunderstand 
me. I am only stating that ui)on which we depended when we made 
our investment. I am simply- reminding you that we had good 
ground to believe it ; that we acted upon that belief, and that we were 
right; and upon the strength of that I appeal to your sense of justice 
to consider our equities. 

Mr. Garner. I only ask for information. 

The Chair^ian. If this committee should vest the power in the 
Secretary of War or the Public Service Connnission of New York to 
dispose of this water for power, either one of those agencies can dis- 
pose of it to whom it desires ( 

Mr. Brown. You mean the}- would have the legal right to do it — 
give it all to some one else and ignore us^ 

The Chairman. Yes; you can put it that way. 

Ml-. Brown. As a matter of law, I don't think they would. 

The Chairman. What would you do if they did:? 

Mr. Brown. That I can not tell. I know what I would advise. 
I Laughter.] One tiling is sure. Before the power is allotted I 
would ask for a hearing, and I would go before the commission of 
New York, or before the Secretary of War. whichever has the say, 
and knowing the fact that our equities could be considered, I would 
rely upon the faith that before we got through we would impress 
those gentlemen with what is right and fair in the matter. 

The Chairman. Have you considered the fact that the Secretarj^ 
of Win- can revoke your permit? 

Mr. Brown. The terms of the- act so provide: yes. sir. 

Ml-. Garner. Before you go from the other proposition, you made 
a suagestion as to what the provisions of the bill should be, which 
woui(i be virtually a direction that ycuir companies be giyeu this 
additional amount? 

Mr. Brown. Not necessarily. 

Mr. Garner. Yes: but if the bill should ]novide that they shall 
take into consideration your legal and eipiitable rights — if a bill con- 
tained that kind of a clause, and if I were Secretary of War. I should 
feel that Congress directed me to give jireference to those rights over 
those of any newcomers; whereas if you left that out, you could still 
appeal to tlii^ commission or to the Secretary of War in an argument 
based upon j^our legal and equitable rights? 

\Mr. Brown. You see, I wouldn't ai)peal to men's favor nor to 
prejudice; I say again we are not here holding the law over you as a 
threat. I would say to the authority having the power of disposal, 
" Here are our rights under the law. It is your duty to consider 
them. In view of all the circumstances, it is fair that the Niagara 
Co. should be given 1,400 of this 4.400 feet; the Hydraulic Co. can 



PRESKKVA'IION OF NIAGARA FALT.S. 55 

speak for itself.'- Instead, for instance, of civing it, in terms, back 
to the State of New York, who have ah^ead}^ in advance given it to 
us, it is more equitable to leave it open, so we may be considered. If 
the permit were expressly confined to those utilizing the highest head, 
they might have to give it to some man who comes up here with a 
$35,000^000 proposition (on paper) which is only an in futuro dream, 
and who says, " Until Ave get our scheme financed, we want to tie up 
the use of this extra poAver and prevent its use by those who have 
already made investments on the faith that they would be allowed 
enough to operate at normal capacity." 

Mr. Garner. You could do that very easily, Mr. BroAvn, if the 
Secretary of War should direct it as he sees best, because otherwise 
it Avould be an expression of Congress as to Avhat its vieAvs Avere in 
the premises. 

Mr. Broavn. In general, I agree with you. Now, the point is this: 
It is impracticable for Congress to determine in advance the exact 
limits, conditions, or grantees of these permits; but you can deter- 
mine the general policy and leave the details to somebody else, so that 
a proper and equitable distribution can be made. 

Mr. Garner. And it would be more elastic if we did not compel 
the Secretary of War to take into consideration the legal and equita- 
ble rights 

Mr. Broavn. I beg your pardon; I think I intended to state that 
the proposed act may be too elastic and that it may be too inelastic. 
Is it no reflection on Congress that, Avhen it leaves a discretion to a 
certain department or a certain commission, it shall say to that de- 
partment or commission : "' Not exclusivel3% but besides other things, 
you shall, in reaching your conclusion, take into consideration the 
A'ested property rights inider the law and equities, whateA'cr a'OU shall 
find them to be." Why, gentlemen, that seems to be doing only what 
the Burton Act did (although inaccurately) and AA'hat this country 
did (but more accurately) in its convention Avith Great Britain, each 
country being represented by its most prominent laAvyer and citizen. 
Why should you noAv, in an act to give effect to that treaty, be less 
considerate of equities and ])ropert_y rights than is the treaty itself ? 
I^ess considerate than even the Burton Act? 

Mr. DiFENDERFER. If Avc Avcrc to grant this extra amount of ))OAver 
to tAvo of those companies, wouldn't the Niagara Falls PoAver Co. be 
the principal beneficiary, in Adew of the fact that the Hydraulic 
Power Co. is A^ery limited in point of production and distribution? 

Mr. Broavn. Now, as I understand the situation, there is no mem- 
ber of this committee but knowns — and I think Ave can take Gen. 
Bixby's Avord for it— there is no worry that these companies Avill not 
have a market for all the poAver they can get. They need all the extra 
power allowed under this treaty. Four thousand four hundred more 
will put us AA'here we can operate our plants economically; 1,-tOO feet 
puts the Niagara company in proper condition; 8,000, the hydraulic 
company. 

Mr. Legare. Who do I understand fixes the amount of water noAv 
being used by each company? 

Mr. Broavn. The Secretary' of War. 

Mr. Legare. The Secretary of War fixes how nuich Avater you shall 
use and the other company shall use? 



56 PRESERVATION OF NIAGARA FALLS. 

Mr. Brown. Yes, sir; now, I stated the general conclusions as to 
the effect upon navigability, upon the river as a boundary stream, 
and upon the scenic beauty, as stated in the reports, made by this 
4,400 feet. I have a short statement from the United States En- 
gineers' Reports (S. Doc. No. 105 and H. Doc. No. 246), which 
T wish to go into the record at this point. 

The Chairman. Yes ; put them in the record. 

Mr. Brown. It is as follows : 

EFFECT ON NAVIGABLE CAPACITY OF RIVER AND LAKE. 

The reports show that the ouly diversions that need be considered with refer- 
ence to this topic are those made above the upper cascade of the rapids in tlie 
so-called Chippewa-Grass Island pool ; that is to say, the diversions of the two 
American companies and that of the Ontario Power Co. The diversions made 
by the Canadian Niagara Power Co. and the Electrical Development Co. being 
below the upper cascade can not possibly affect the level of the navigable por- 
tions of the river or of Lake Erie. (H. Doc. No. 246, 62d Cong. 2d session, 
p. IL) 

The presQiit permitted diversion from the Chippewa-Grass Island pool, as- 
sumed to be 39,350 cubic feet per second, is stated to lower the level of Lake 
Erie 0.07 feet, or about fourth-fifths of 1 inch. (S. Doc. No. 105, p. 12.) Maj. 
Keller states categorically that this divei-sion " will not injure nor interfere 
with the navigable capacity of the Niagara River." (S. Doc. No. 105, p. 12.) 
The effect upon the navigable capacity of the river of further diversions is stated 
on page 51 in a table showing the effect of each 10,000 cubic feet i^er second ad- 
ditional diverted from this pool. The effect at Lake Erie for each 10,000 cubic 
feet per second diverted is stated to be 0.04 foot. The maximum diversion now 
proposed from the Chippewa-Grass Island pool is about 32,0(X) cubic feet per 
second (20,000 on the American side of the river and 12,000 by the Ontario 
Power Co.) ; that is to say, 12,750 cubic feet per second in addition to the 
amount stated in the report as the amount now permissible. This additional 
12,750 cubic feet iter second, therefore, will cause a lowering of Lake Erie of 
0.05 foot, or about three-fifths of 1 inch. 

These predicted lowerings at the head of the river, measured in fractions of 
an inch, are quite negligible in comparison with the variations of lake level due 
to nature, which swing through a range of 14 feet. (S. Doc. No. 105, p. 24.) 

Now, Gen. Bixby stated to this committee, on Tuesday, the fact — 
and it is a self-evident fact— that the full amount of diversion al- 
lowed on the Canadian side will surely be made within two or three 
years, whether transmission to this side is allowed or not. The ques- 
tion, then, which interests this committee is as to the effect upon 
navigability caused by allowing an extra 4,400 cubic feet per second 
on this side. That extra diversion woidd manifestly cause a differ- 
ence of levels of Lake Erie of only about one-fifth of an inch. It 
therefore is manifest that this extra diversion can not affect naviga- 
bility. 

Indeed, Gen. Bixby stated to this committee that the diversion of 
the full amounts fixed by treaty on both sides of the river would not 
appreciably affect navigation. 

EFFECT TI'ON Tin: INTI'nRITY (IH 1M!01M:R VOLUME OF ISMAOARA RiVKK AS A HOUNPAKY 

STREAM. 

The reiM)rls make il quite clear (S. Doc. No. 105, p. 13) that no diversions 
that have ever been proposed will injuriously affect the river in this regard. 
(See also II. Doc. No. 24(5, ]). 12.) 

The report of the United States engineers, made after most careful 
investigation, shows therefore that the diversion of the full amounts 



PKESEKVATION OF NIAGARA FALLS. 57 

iixed by the treaty would have no appreciable effect upon the 
navigability of the stream or of Lake Erie and no effect upon these 
waters as boundary streams. 

It remains to consider the results present and prospective upon the 
scenic beauty of the Falls. 

As to the "American Falls, both the reports of 1908 and 1911 show 
that the diversions are such that " it is doubtful Avhether the diversion 
would be appreciable " and " these changes can not be considered as 
important." (S. Doc. No. 105, p. 14; H. Doc. No. 24(3, p. 12.) 

Again, the only material question here now is as to the effect upon 
the scenic beauty of the extra diversion of 4,400 cubic feet per second 
on the American side, for Congress can not limit and the Canadian 
Government will not limit the amount of the diversions upon the 
Canadian side below the treaty amounts. Figuring from the data 
Avhich is given by the United States engineers in Senate Document 
No. 105, page 53, and House Document No. 246, page 13, and Senate 
Document No. 105, page 51, a diversion of 4.400 cubic feet per second 
on the American side w^ould have the following effect : 

At the crest of the American Falls, less than one-eighth inch. 

At the Goat Island end of the Horseshoe Falls, approximately nine- 
sixteenths inch. 

At the Canadian end of the Horseshoe Fall, less than l^V inches. 

At Lake Erie, approximately one-fifth inch. 

These quantities are evidently insignificant, and with reference to 
the effect of the diversion of an extra 4,400 cubic feet per second 
Gen. Bixby on Tuesday stated to this committee that the diversion 
of that extra quantity w^ould have no appreciable effect upon either 
the American Falls or upon the Horseshoe Falls, 

Therefore, the diversion, over which Congress is assuming control, 
for the preservation of the scenic grandeur — that is, the diversions up 
to the treaty amount upon this side of the river,, and especially the 
additional amount of 4,400 now asked to bring the American diver- 
sion up to the treaty amount, can have no appreciable effect upon 
the scenic granduer of either the American Falls or the Canadian 
Falls. 

So I say, gentlemen, so far as this 4,400 feet is concerned, it should 
be granted to somebody. In other words, the limit of 15,000 feet 
total diversion upon the American side which is fixed by the Burton 
Act should be extended to 20,000, as provided by the treaty. 

Mr. Garner. That could be effected by changing the figures in the 
Burton Act. 

Mr. Brown. Sure; certainly; I could make that change and other 
changes very easily. [Laughter.] 

Now, gentlemen, let us examine the other propositions. The first 
(already discussed) is to raise that restriction which now deprives 
everybody, individuals and the public, of the use of 4,400 cubic feet 
of water per second. The second is to do away with the prohibition 
upon the transmission of power from Canada. The limitation is now 
160,000 horsepower. Mr. Watrous made the statement or inference 
here the other day that of the 160,000 horsepower allowed to be im- 
ported from Canada under the Burton Act they are now permitting 
only 110,000. Now, gentlemen, I have those figures; and this will be 
the third insertion I wish to make. It is as follows : 



58 PRESERVATION OF NIAGARA FAIXS. 

The following permits for diversion ha\o been operative since 
August. lOOr (H. Doc. No. :>4f). p. 13) : 

Cubic feet 
per second. 

Niiigara F.ill.s Power Co 8,600 

Niiigara Falls Hydraulic Power & Machinery Co. (uow Hydraulic Power 

Co.) 6,500 

Lockport Hydraulic Co 500 

Total 15,600 

These figures are maxinuinis. 

By the same report the following have been the permits for trans- 
mission from Canada since August, 1907: 

Horsepower. 

Canadian Niagara Power Co. to Niagara Falls Power Co 52,500 

Electrical Development Co. to certain companies 46,000 

Onlario Power Co. to Niagara L. & O. P. Co 60,000 



Total 158, 500 

'J'he same report (H, Doc. Xo. 246, p. 15) shows that the transmis- 
sion permit from the Canadian Niagara Power Co. and from the 
Ontario Power Co. was practically all transmitted, the 52,500 allowed 
from the Canadian company being. fully transmitted, and about five- 
sixths of the amount permitted to the Ontario Co. of the 46,000 
permitted from the Electrical Developing Co. only 10,000 has been 
due. This is because of temporary conditions. 

Mr. Garner. The total authorized importation is 160.000 horse- 
power ? 

Mr. Brown. Yes: and the total amount actuallv permitted is 
158,500. 

Mr. (xARNER. The total amount actually transmitted is how much? 

Mr. Brown. The maximum in June, 1911, was 110,000, the differ- 
ence being because the electrical company does not use all theirs; but 
that does not give the other companies the right to import more. 

Mr. Garner. T assume those permits are revocable? 

Mr. Brown. Yes, sir. 

The Chairman. In a nutshell, as I understand it, you are in favor 
of utilizing the additional power we are entitled to under the treaty; 
secondly, you are in favor of remo\ing any restrictions upon the 
im])ortation of power from Canada: third, we would like to know, 
now. which of these. two bills you prefer — the Smith bill or the 
Simmons bill ? 

Mr. Brown. I would like to finish certain points. We are in favor 
of lifting these restrictions, from the standpoint of business men. 
When Gen. Bixby spoke to you Tuesday he said: "Gentlemen, the 
treaty between these two countries allows 36.000 cubic feet diversion 
upon the Canadian side" (now these are not his exact words, but it 
is the .substance of them). "If you think that l)y prohibiting the 
importation of Canadian power you are going to do anything that is 
directly or indirectly to protect scenic beauty, you are mistaken, be- 
cause it is not going to have the effect in the end of diminishing what 
would otherwise be the actual diversion on the Canadian side." 
Somebody asked the question. " How long — five or ten years? *' " No. 
gentlemen,'' he replied, "I say if yon don't take this restriction off 



PRESERVATION OF NIAGARA FALLS. 59 

within two or three years, they are going- to use every bit of that 
power on the Canadian side.'' 

Mr. DiFEXDERFEit. Where? 

Mr. Brown. On the Canadian side. There are industries in Buf- 
falo and on this side which can not be run by electricity economi- 
call}', because the^' can not get tliis power that would be developed 
on the Canadian side. There is great demand on this side for more 
power. Industi-ies would immediately take U}) this power if it is 
found that the policy of the American Government is to refrain 
from restriction on iriiportation. They can only import al)out half 
of that power, because they have practically agi'eed to save half of 
that for the Canadian side. 

Mr. DiFENDEUFER. You sav that power is likely to be used to its 
limit within the next few years? 

Mr. Brown. T said that Gen. Bixby said it would be within two 
or three years, and anyone who knows conditions up there knows he 
is correct. 

Mr. DiFENDERFER. For the very reason, as I have stated before, 
that thev can s^et that j>ower for 12, while on our side the miniuuim 
is 20. ■ ' " 

Mr. Brown. Those figures are not correct, but I was going to 
speak about the rates in a moment. And right here, would it not be 
a strange thing for a legislative body to come in and interfere in the 
mattei- of rates between the consumer and the producer when there 
is no demand for interference? The only cry from the present and 
prospective consumers is for more power at the same rates. Have 
you heard any substantial complaint of inefpiity or inequality or in- 
justice on the American side? 

Mr. DiFENDERFER. It is quitc evident that there is a discrimination. 

Mr. Brown. Isn't the man who is taking the power and paying 
for it the man to kick? And is it not strange that this rate question 
is not troubling him, but is troubling only outside agitators? The 
rate questicm in Buffalo is not an economic question; it is simply one 
of politics. 

Mr. DiFENDERFER. If you take the evidence of the counsel of the 
city of Buffalo, it looks to me as if it would take $35,000 to make the 
kick. 

Mr. Brown. Wait a minute. The city of Buffalo has devoted 
$35,000 to have the rates investigated. Is that right? 

Mr. DiFENDERFER. That is right — to appease the kickers. 

Mr. Brown. Xow. gentlemen, when anybody makes a complaint 
the party that asks the change has to show the proper facts. And 
isn't that true before a conunission or before a court or before any 
judicial body? Isn't that true? If somebody says that in the city 
of Buffalo the rates are high they know it requires an investigation, 
and it is long and it is expensive; and then there is tliat other awful 
item — lawyers' bills. 

Mr. DiFENDERFER. Yes. sir: that is an item. 

Mr. Brown. And they have to be paid — at least they haAC to be 
incurred. [Laughter.1 

Mr. DiFENDERFER. I am glad you make that distinction. 

Mr. Bartholdt. T should like to ask a few questions. I want to 
ask for niv own information and satisfaction. 



60 PRESERVATION OF NIAGARA FALLS. 

Mr. Brown. You soe. I have lK?en drawn off on this (luestion of 
rates. I am coming to the conchision that the Congress should not 
trouble itself about rates. 

The CHAiR:kiAN. In regard to rates, the Public Service Commission 
of New York can fix them if there is any complaint ? 

Mr. Brown. Certainly, sir, 

Mr, Bartholdt. I am concerned only in the beauty of the Falls. 
I regard it as the greatest asset of the people of Buffalo ; I regard it 
a very poor investment to detract from it, 

Mr. Cooper, Would you amend that bv saving '" the people of the 
world?" 

Mr, Bartholdt, Yes, sir. 

Mr. Cooper. At many places in Europe Niagara Falls is the first 
thing they ask about — " Have you seen the Falls? " 

Mr. Bartholdt. Xow. I want to ask this question. Mr. Brown, 
the only excuse for tlie Burton bill was to prevent detraction from 
the Falls — from the scenic beauty of the Falls? 

Mr, Brown, To protect the scenic grandeur, 

Mr, Bartholdt, Precisely. Now, was the question, in connection 
with the treaty betAveen Canada and the United States, of limita- 
tion, as fixed in the treaty, considered as satisfactorily answering 
all possible doubts as to detraction from scenic beauty? 

Mr, Brown, Certainly; yes, 

Mr, Bartholdt, And also to the extent that the treaty findings 
were made after very careful investigations by the Government engi- 
neers and the National Waterways Commission, and the question of 
international 

Mr, Brown. Yes: all those were considered by those who made 
the treaty. 

Mr. Garner. Doctor, Mr, Brown went over that before you 
came in. 

Mr, Bartholdt, Noav. is there any law on the statute books of the 
United States to preserve the beauty of Niagara Falls? 

The Chairman, Nothing but the treaty, 

Mr, Bartholdt, So that the jurisdiction of Congress is only witli 
regard to navigation, and the other is all sentiment? 

The Chairman, Yes. 

Mr. Legare. T understood Gen, Bixbv to say it woidd be iuii)er- 
ceptible, 

Mr, Bartholdt, We are naturally interested in preserving the 
beauty of the Canadian side as well as the American side. 

Mr! Broavn, So far as the 4.400 feet is concerned, it is practically 
imperceptible in the length of the Falls, If you take the entire 
amount of diversion, you have only 4 inches less depth on the Ameri- 
can side of the Horseshoe Falls and 9 inches less on the Canadian 
side, 

Mr, Bartholdt. But Gen, Bixby said that amount would be total? 

The Chairman, That is on the Horseshoe Falls side, 

Mr, Broavn, But remember this thing. The United States has 
power only to protect the American side. When the two countries 
have got together and said that Canada may take 36.000 and we 
may take 20,000 feet, is there any reason why we should say: "You 
Canadians over there are not doing anything to protect scenic 
grandeur; we will take care of that by refraining from exercising 



PEESERVATIOJSr OF NIAGARA FALLS. 61 

our privilege inider the treaty and by restricting importation to 
our side, so as to force industrial development on your side at the 
expense of American interests which are now ready to use the 
power." We know the Canadian companies are going to take the 
36,000 feet. We know that it can not hurt in any degree that is 
sensible to the eye. Now, the extra amount on this side is 4,400 feet, 
and the Canadians have only to add 15,000 to get their allotted 
amount. Are Ave going to hang back until they utilize their last 
foot and lose this vast power forever? Is it wise, gentlemen, when 
the Canadians are going to divert their entire 30,000 feet and when 
the whole amount is. for all practical purposes, not sensibly injurious 
to scenic beauty? 

Xow, gentlemen, while I am more than willing to answer all your 
inquiries as best I can, your questions often anticipate points which 
I have in mind to cover later and thereby cause diversions, which, 
in this instance, I frankly admit are injurious; they injure the con- 
tinuity, and hence the scenic beauty, as well as the boundary lines, of 
my argument. [Laughter.] Now, before I come to the questions 
of rates, I wish to emphasize further the objections to any restriction 
upon importation. It is clear, from what has been shown, that dis- 
couragement of importation can not serve any public interest. It 
can not help to preserve navigation, nor any boundary line, nor help 
military defense, nor help to preserve scenic beauty. On the contrary, 
it is positively repugnant to both our public and private interests. 
That countr}^ will permanently enjoy the advantage of this as yet 
unused power which first preempts it by actual use. The next year 
or two is to decide this question and the decision depends upon the 
fact of whether j^ou continue provisions prohibitive or restrictive of 
importation. It is clear, then, that any such restrictions are bad 
policy. Even from an American viewpoint alone, the interests of this 
country and of the people of the State of New York demand that 
we should get hold of this power as quickly as possible. But there 
are other objections which are conclusive against anj' attempted re- 
striction or prohibition b}^ act of Congress. I refer to the legal ob- 
jections. This special and localized prohibition which is suggested 
is arbitrary and unreasonable. It does not treat all citizens alike in 
regard to the same subject matter. It is a special restriction im- 
posed for the mere purpose of asserting the poAver of restriction. 
There is no demand for it, there is no need for it. No one appears 
here to advocate it, except the representative of that association of 
self-appointed guardians of a theory prevalent 8 or 10 years ago, 
but which theory has been exploded by the careful surveys and reports 
of the War Department ; and the Chief of Engineers now tells you 
that if this restriction is not remoA'ed immediately this country will 
lose forever the use of this power, and that such restriction will not. 
in any degree, limit the total diversion at the Falls. 

But. what is even more important, any prohibition of or restriction 
ni)on importation is contrary to the spirit and terms of the treaty 
of 1909, by which this countiy and Great Britain agreed upon the 
limitations to be allowed by either country with respect to the use of 
poAver at Niagara. All these questions, including that of importa- 
tion. Avere discussed and passed upon. It was decided that it was 
neither necessary nor expedient to restrict importation, and such 

28305—12 5 



62 PRESERVATION OF NIAGARA FALLS. 

restrictions Avere omitted from tiie treaty. That treaty spoke the 
promise and policy of each country to the other. Each country said 
to the other that Cana(hi might divert 30,000 feet; that we "might 
divert 20.000 feet per second, and with those amounts as a maximum 
each country niigiit fix limits on its own side, but that in every other 
respect the rights and privileges and opportunities of each country 
should be left free. The idea was that the Canadians could use their 
36,000 feet to supply a demand wherever they might find it; and the 
American market was in mind. By a prohibition or restriction upon 
importation of i^ower from Canada to this side we assert the right 
not only to control amounts of diversion upon this side but also upon 
the Canadian side. We deprive the Canadian investors of the market 
with reference to which the treaty was made. For Congress, after 
the treaty, to attempt to control or restrict the intended use by the 
Canadians to their share of the total diversions allowed (as by restrict- 
ing importation) is not keeping good faith with the other party to 
the treaty. It is an invasion of the rights of Canada and of the 
(yanadian investors, contrary to the treaty. 

Developments and construction proceeded upon the Canadian side 
on the theory that the demand for power on the American side might 
be freely supplied by Canadian investors. This proposed legislation 
is for the purpose of carrying out the treaty provisions, to give.efl'ect 
to the treaty in so far as legislation is required. Importation should 
be free, therefore, not only because it is wise and consistent with the 
treaty, but also because any prohibition or restriction upon importa- 
tion would be repugnant to the spirit and terms of that treaty. 

Mr. Cooper. Mr. Brown. I don't want to " divert " you. but I 
would like to have your opinion as a lawyer, if you are willing to give 
it to this committee as such, as to the power of Congress to regulate 
rates. I am sure that question is going to be discussed in the House, 
and, realizing your ability as a lawyer. I would like very much to get 
your o])inion. 

Mr. Brown. Xow, I want to stick a pin right there, because that is 
my very next proposition. 

Mr. Cooper. T am glad to hear that. 

Mr. Brown. You mean a regulation of rates in connection with a 
restriction upon importation or upon the use of the extra 4,400? 

Mr. Cooper. In both instances. 

Mr. Brown. Well, let us take importation. I say the importation 
restrictions should be removed, and there should be nothing said 
about tarilf. rates, tolls, or other restrictions. That is a legal and 
business like proposition. Now. in this instance you could not justify 
a charge on the ground of a tariff. Congress can not say that pota- 
toes brought over the boundary line at one place should be subject 
to a charge to which the same goods brought over the same line at 
a point 100 miles away would not be subject. The control of the 
tariff is not an arbitrary one. 

Now, " toll " comes out of something of ownership. Now, no 
lawyer would say that either the United States Government or the 
States owned the waters. Nobody owns the waters; the riparian 
owner does not owmi it; he owns the use of it, the right to use it; 
the Government does not own the waters, but it has only the right 
to prevent unreasonable interference with navigation. There is no 
basis for any charge based on Government or State ownership. 



PRESERVATION OF XIAGABA FALLS. 63 

jVIr. Difeiiderfer said the other day: ''Aren't they going to pay 
for this water that we are giving them ? " Why, as a lawyer, 1 would 
say : " In the first place, you don't own the water. In the next 
place, you don't give it to them." Why? Because the right to its 
use belongs to the riparian owners. Neither the Government nor 
the State of Xew York has any ownership of the water itself, and 
neither could impose a toll or charge for its use. 

Next, can the Government of the United States regulate the rates? 
I say, " No," for two reasons : In the tirst place the United States 
has no power to regulate rates within the State of New York. That 
power can not be based on any power to regulate scenic beauty, even 
if the latter power existed in Congress. But it does not. If the Gov- 
ernment of the T'nited States has the right to regulate the waters 
at Niagara to protect scenic beauty — much more, if it has a right to 
prohibit on the ground of preservation of scenic beauty — then every 
Avater power upon a navigable stream in the TTnited States, every 
w'aterfall, which proportionate to its size and character has value 
as a feature of the landscape, can be prevented from being used for 
water power on the ground of preserA'ation of scenic beauty. 

Mr. Cooper. Has the United States any right to prevent importa- 
tion of power from Canada ? 

The Chairmax. Well, it has done so. 

Mr. Cooper. I am speaking about rights. 

Mr. Browx. That is a tariff question. It is a commerce question. 
We say '"'■ Yes." if it is general. But do you suppose this is the 
only locality where power is being imported ? 

Mr. Cooper. No; but it Avould seem to me that they would have 
the right also to name the conditipns under which they shall grant 
the permit. 

Mr. Browx. Has the Congress of the United States a right to say 
that Jim Jones shall not, at the tOAA'n of Smithville, on the line, bring 
across daily 10 barrels of potatoes to this side of the line? 

Mr. Cooper. That is not a parallel case. 

Mr. Broavx. But that is Avhat they are doing here. Noav, if you 
haA^e a general laAV Avhich applies to all people equalh', then it be- 
comes a tariff proposition. Gentlemen, I am not trying to ram that 
proposition down your throats, but I am simply trying to tell you 
to pass that for a moment and listen to the equities of the question. 

Mr. Cooper. Suppose in passing a statute of that kind just the 
naked law aa^ouIcI provide for the regulation and there Avould not be 
in the statute any statement of the motives of the legislator, Avhether 
it was for scenic beauty or Avhether it was a matter of discretion in 
carrying out its power under the connnerce clause. Courts don't in- 
quire into the motiAe: if the law is constitutional it stands. 

Mr. Broavn. I would not say '" Yes '" unqualified Iv- I would say 
they hesitate to do so, but when they find a ground Avhich is ap- 
parently unconstitutional and illegal they set it aside. 

Mr. Cooper. If, on the other hand, the law is not on its face ab- 
surd and ridiculous, but could he fairly interpreted as carrying out 
the commerce clause, or navigation, the court AA-ill sustain it upon 
this proposition: That a laAv shall not be set aside unless it is uncon- 
stitutional beyond a reasonable doubt? 

Mr. Broavn. Yes, sir; that is the tendency under the laAv. Noav, 
then, you and I Avon't differ on that ; but notice hoAv I AA'ant to ap- 



64 PRESERVATION OF NIAGARA FALLS. 

peal to your sense of fairness and right, and I am not hypocritical. 
The Burton Act upon its face shows that it was an act by the United 
States Government to protect scenic beauty. The treaty upon its 
face and by the terms in which it was drawn says it Avas made solely 
with reference to scenic beauty. That act and that treaty were frank 
in expressing their objects. The engineers of the United States have 
told you that there is no practical ground why you should legislate 
on the ground of protecting navigability or boundary streams, and 
the only ground anyone e-ver claims here is scenic beauty. Indeed, 
the only purpose of this proposed act is to carry out the treaty. 
Now, if I should hear a gentleman on the other side of the argument 
say to you : " Mr. Cooper, the Burton Act was not sharp and shrewd 
enough. As a matter of fact, there was no ground of legislation ex- 
cept to protect scenic beauty, but they gave this away on the face 
of the act. Then, when they came to the treaty, they fell down, too. 
There was no sufficient ground, in law or in fact, based on scenic 
beauty; but they gave themselves away. Xow, beat them. Get up a 
law that will enable us to get something that is in fact unconstitu- 
tionah but which ma}^ be made to appear to the courts as otherwise, 
by concealing its effect and object." If anyone should tell you that, 
I should say that he is not honest and he has asked you to do some- 
thing that is not honest; and I don't believe that this committee of 
Congress will recommend to the House to do what no man who is 
not dishonest would do. Am I clear? 

Mr. Cooper. You are pretty pointed, though. 

Mr. BnowN. Absolutely, noAv, I did not mean anything personal. 
I appreciate the fact that you were merely speculating about possi- 
bilities. 

]Mr. CooPEK. That is all right, but I had in mind the tax on State 
banks, to get revenue and for other purposes : but on the face of it it 
was unconstitutional and the motive of the legislator Avas for the 
purpose of smashing the State banks. On the other hand, take the 
oleomargarine law, and the preamble of it. Everybody could see it 
was not for revenue; it was simply to make it very embarrassing 
for the oleomargarine people to do business and to compel them to 
state what their article is. Xow, then, Congress passed a law — no, 
two laws, and they were attacked and Avent to the Supreme Court. 
The arguments of counsel were that the motives of the legislator 
were unconstitutional. The court said they did not have the right 
to consider the motives, and so they sustained them both. So in this 
particular case, if Ave should pass a statute and leave out the mention 
of scenic beauty and control that, in the exercise of our discretion 
under the poAvers granted by the Constitution, Avould it be uncon- 
stitutional ? 

Mr. Broavn. I can not tell Avhat the result would be, but I hope 
mighty Avell it Avould be declared unconstitutional. 

But Avhy this seeming anxiety at times to get around the consti- 
tutional barriers which are intended to protect property rights? 
Why, in Canada, Avhere there are no constitutional limitations to 
legislation, and Avhere Parliament ma}', if it chooses, diminish and 
even destroy private property rights and investments, and Avhere 
the courts have not the poAver to declare a legislative act invalid, once 
it should be seen that the effect of any proposed legislation Avas to 
take aAvay such rights, e.specially after inA'estments made, no com- 



PRESERVATION- OF NIAGARA FALLS. 65 

mittee of Parliament, nor Parliament itself, would consider it with 
favor for a moment. But here in this country we have express con- 
stitutional prohibitions against legislation, the enforcement of which 
would impair contracts or injure or destroy property rights, or dis- 
criminate between citizens of the same class, and we have a judiciary 
whose privilege and duty are to see to it that no legislation, State 
or National, which is repugnant to such express prohibitions shall 
be enforced. Why, then, should we, before a committee of our 
national Congress, be trying to solve the puzzle of how Congress 
might do something indirectly which it is confessedly not within its 
powers to do directly? Why this anxiety, disclosed before a body 
of men here who are sworn to protect the Constitution and laws of 
this Nation, and property rights established under those laws, to get 
around the Constitution and the courts in order to legislate against 
or regardless of vested property rights? And this, too, with refer- 
ence to the rights of investors who do not ask for the protection of 
their full legal rights, but only to the extent of about one-half — that 
is, to the extent that investments and installations have already been 
made ! Indeed, the}' do not ask you in this proposed legislation ex- 
pressly to protect even that remnant of their right. We ask only 
that you shall not so legislate as, in terms, to prevent a fair con- 
sideration of our rights and equities in connection with the distribu- 
tion of this water power. May I close, please? 

The Chairman. Yes, Mr. Brown; and I trust you will be allowed 
to proceed. 

Mr. Legare. I do not understand you to contend that Ave are with- 
out authority to prohibit the importation of power? 

Mr, Brown. I would not say that, if it is general. 

jSIr. Legare. Now, then, the other question that was asked you : If 
we have the power to prohibit importation, why haA^e we not the 
poAver to put restrictions upon it ? I am asking you this question 
because ^\e AA'ant to be in a position to ansAAer questions in the House. 

Mr. Broavn. Noaa', I haAe not investigated these questions much, 
but my opinion as a lawyer is that, AA^ith general importation restric- 
tions, proper conditions may be attached: but, taking the facts of tlie 
<;ase here, the only purpose could be to protect scenic beauty, and the 
restriction on importation is a special and local one. But, gentlemen, 
even at that, ayc, the Niagara company, say this: That if you AA^ill 
only leave the rates to the State commission or the proper body in 
New York and giA'e us a chance to be heard, the question will be 
decided on the facts, AA'hich you can not sift out here, and (Uir equities 
and rights will haA'e a chance to be preserA'ed. Noaa-, gentlemen, giAe 
us some chance of relief, if Ave shall sIioaa- aa'c are entitled to it, and 
place the limit of diversion alloAA'ed to any one company at 10,000 
instead of 8,600. There should be no restriction upon importation. 
More than that, the amoimt fixed by the treaty is not a diversion of 
20,000 cubic feet in any one second : it is a diversion by the day at the 
rate of 20,000 feet per second. Do you see the difference? 

A Member. A good deal. 

^Ir. Broavn. Suppose the 20,000 feet were all granted to one com- 
"P'Any. Under the Burton Act provisions that company could only 
diA^ert for auA' one second that amount, although the average for the 
day was much less. 



66 PRESERVATION OF isiAGARA FALLS. 

You know how factories are run: you know what tlie peak of the 
load is in one day. You know this: That, so far as alfecting Lake 
Erie and the river for scenic beauty, the variation of two or three 
hours can not at the end of the day have any practical effect. The 
treaty saj's that the diversions shall be " not exceeding a daily diver- 
sion at the rate of 20,000 cubic feet per second." The present permits 
are granted on the assumption that it is a limit of 20.000 feet in any 
one second. So far as it affects these other ccmditions of general 
public interest, it does not amount to anything, but it does hamper 
the efficient use of the power plants. 

Mr. Cooper. Now. suppose you only took 40,000 a second for half 
a day, and the other half of the day you shut up : what would be the 
average? 

Mr. Browx. The largest part of this power is 24-hour power. 

Mr. Barixjn. Most of it. 

Mr. Brown. Mills and factories to-day do not shut up in the night- 
time; they are working all the time. They work longer hours where 
they can get more and cheaper power; but it happens that about 5 
or 6 o'clock the peak of the load comes up — only slightly in this case. 
But the treaty provisions are in daily diversions at the rate of 20,000 
cubic feet per second. 

May I suggest that the act should substantially contain what is 
contained in this proviso, Avhich reads as follows : 

Tliat in fulfillment of the purposos of Article V of said treaty the several 
amounts of water of the Niagara Kiver within the State of New York above 
tlie Falls which may i)e diverted under the s:iid act or under permits of the 
Secretary of War in puisuance thereof shall be limited only so that the total 
diversion within the State of New York of the waters of said river above the 
Falls of Niajiara for power i)urposes shall not exceed in tlie agjire.i^ate a daily 
diversion at the rate of 2(MX)0 cubic feet of water per second, and that the Sec- 
retary of War shall have authority from time to time to grant revocable permits 
for such daily diversion in several amounts not exceeding in the aggregate said 
20.000 cubic feet per second, nor to any one individual company or corporation, 
as aforesaid, a maximum amount at the rate of 10.000 cubic feet per second; 
such grants to be made and continued only with due regard to the rights of 
the State of New York and its grantees in said waters of said river, and so 
that no monopoly shall be thereby ci-eateil or continued: And provided further. 
That the quantity of electrical power which may by permits be allowed to be 
trans; 'tted from the Dominion of Canada into the Fnited States may and 
shall be 'i'.ny and all of the i.ower by said treaty authorized to be developed 
within the Province of Ontario from said waters of said river that shall not 
be used or be required for use in the Dominion of Canada. 

And may I ask also to put in a statement by Mr. Philip P. Barton 
and Mr. Egbert, w^hich is substantially a svnnmary.of the principal 
points contained in Senate Dwument Xo. 105 and House Docinnent 
No, 246 — a sununaiy for convenience — and ask that it be printed and 
made a part of the record ? 

The Chairman. Let it be printed. 

>Ir. Brown. And this is drawn uj) by Mr. Francis Lynde Stetson, 
of New York, a director and stockholder of this company. Some 
time ago he wrote these five or six pages, which show the righteous- 
ness of some of these provisions just suggested. Might I ask that 
they be put in the record? 

The Chairman. Yes: it will be printed. Mr. Brown. 

Mr. Brown. And, Mr. Cliairman, may I ask this: If I think of 
anything else, may I put it in writing and send it in and have it made 
part of my statement in the printed record ? 



PRESERVATION OF NIAGARA FALLS. 67 

The Chairman. Yes. 

The papers — Barton, Egbert. Stetson— ottered and received into 
the record next follow : 

Summary or Reports Published in Senate Document Xo. 105, 
Sixty-second Congress. First Session, and in House Document 
No. 246, Sixty-second Congress, Second Session. 

(By .A[r. I'. P. Bartox.) 

(!) So f:ir as practical effect iiiion the scenery and navigability of Niagara 
River is concerned, the qnestion now l)efore Congress, when ju'operly stated, is 
shown by these reports to be small and insignificant. 

The question divides itself into two parts: 

(1) Shall restrictions on transmission of power from Canada into the United 
States be removed? 

(2) Shall limitation of diversion of water on the American side of the river 
be extended from 15,600 cubic feet per second to 20.000 cubic feet per second? 

So far as permanent effect upon the river is concerned, it is obviously im- 
material whether Congress answers the first question in the aflirmative or in 
the negative. By the terms of the treaty 36,000 cubic feet per second may be 
diverted on the Canadian side of the rivei', and very soon that amount will be 
there diverted. Congress can not prevent this. Canada not only permits it, 
but by Government aid encourages and promotes it. All that Congress can do 
by restricting importation is to deprive American citizens of the beneficial use 
of power generated in Canada, which, if not utilized promptly in the United 
States, will be forever withdrawn by Canada. Five years ago it was estimate<l 
that a market for 50,000 horsepower would be fomid in Canada within trans- 
mission distance of Niagara upon completion of transmission lines (Hydro- 
Elec. Power Com. 1st Report, 1900, p. 7) ; to-day, with transmission lines not 
yet completed, the Pro\ince of Ontario is using nearly 00,000 horsepower 
from Niagara, and yet the markets estimated in 1906 are not half supplied. 
As Canada surely will use its entire quota of diversion, it is evident that from 
the point of view of effect on the river the question of restricting importation 
of power may be eliminated from the discussion. 

To determine the practical eftec-t on the river of its answer to the second 
part of the question. Congress must a.scertain the results of a diversion of 
4,400 cubic feet per second from the Chippawa-(Trass Island ix»ol. The reports 
indicate these results with the utmost exactness. 

In Senate I)ocument No. 105. page .53, the lowering of the crest of the Ameri- 
can Fall for 5,6(Xt cubic feet per second diverted from above the uppermost 
cascade is stated to be twelve one-thousandths foot. A diversion of 4,400 cubic 
feet per second, therefore, would result in a lowering of not more tha'^ 
0.012X4400 
^^ — =0.00943 ft.=0.113 in., or less than J of an inch. 

In House Document No. 246. page 13, the lowering at Teruapin Point is stated to 
be eleven one-hundredths foot and at the Canadian end of the Horseshoe Falls 
to be twenty-seven one-hundredlhs foot for each 10.000 cubic feet i)er second 
diverted. A diversion of 4,400 cubic feet per sec-ond accordingly would produce 
at Terrapin Point a lowering not more than 

l^:ll^lii-^=0.04S4 ft.=0..5S(>s in.=approximatelv ui of an inch, 
KKIOO 
and at the Canadian end of the Horseshoe Falls a lowering not more than 

"^10000 ^^^•^^■'^'^ ft. = 1.42.56 in., or less than It'^ in. 
In Senate Document No. 105. page .51, the lowering at the head of the river 
(Lake Erie) is stated to be four one-hundredths foot for each 10,000 cubic feet 
per second diverted from above the upper cascade. A diversion of 4,400 cubic 
feet per second, therefore, would produce at Lake Erie a lowering of 

- ' i^.,v ~ =0.0176 ft.=0.21]2 in., or approximately h of an inch. 



68 PRESERVATION OF NIAGARA FALLS. 

Recapitulatinj?, we find that a diversion of 4.4<X) cubic feet per second is 
reported to have the following effects : 

Inches. 

At the crest of tlie American Falls, less than i 

At the Goat Island end of the Horseshoe I-'alls, apitroxiniatoly A 

At the Canadian end of the Horseshoe Falls, less than li^ 

At Lake Erie, approximately i 

These are the quantities, and the only quantities, that can be really affected 
by the legislation now before Congress. That they are utterly insignificant 
and negligible when contrasted with the industrial benefit that will accrue to 
the couuti-y by permitting an additional diversion of 4,400 cubic feet per second 
and by removing restrictions on importation of power is made obvious by 
merely stating them. 

2. Effect ox Navioabi.k Capacity of Kivkr and IjAKk. 

The reports show that the only diversions that need be considered with 
reference to this topic are those made above the upper cascade of the Rapids 
in the so-called Chippawa-Grass Island pool ; that is to say, the diversions of 
the two American companies and that of the Ontario Power Co. The divei sions 
made by the Canadian Niagara Power Co. and the Electrical Development Co. 
being below the upper cascade can not possibly effect the level of the navigable 
portions of the river or of Lake Eric. (H. Doc. No. 246, 62d Cong., 2d sess., 

p. 11.) 

The present permitted diversion from the Cliii)pawa-Grass Island pool as- 
sumed to lie 10,.'>.">0 cubic feet per second is stated to lower the level of Lake 
Erie seven one-hundredths of a foot or about four-fifths of 1 inch. (S. Doc. No. 
105, p. 12.) Maj. Keller states categorically that this diversion " will not injure 
r.or interfere with the navigable capacity of the Niagara River." (S. Doc. 
No. 105, p. 12.) The effect upon the navigable capacity of the river of further 
diversions is stated on page 51 in a table showing the effect of each 10.000 cubic 
feet per second additional diverted from this pool. Tlie effect at Lake Eric for 
each 10,000 cubic feet ])er second diverted is stated to be four one-hundredths 
of a foot. The niaxinu-m divers-ion now i)roposed from the Chippawa-<;r;iss 
Island pool is about 32,000 cubic feet per second (20.000 on the American side 
of the river and 12.000 by the Ontario Power Co.) : that is to say, 12,750 cubic 
feet per second in addition to the amount stated in the report as the anumnt 
now permissible. This additional 12,750 cubic feet per second, therefore, will 
cause a loA'ering of Lake Erie of five one-h\mdreths of a foot, or about three- 
fifths of 1 inch. 

These predicted lowerings at the head of the river measured in fractions of 
an inch are quite negligible in coniparison with the variations of lake level due 
to nature, which swing through a range of 14 feet. (S. Doc. No. 105, p. 24.) 
The regulating device, which it is undeistood will be recommended by the Inter- 
national Waterways Commission to prevent the recurrence of low-water stages 
of Lake Erie due to naturi'. will obviously counteract completely any possible 
lowering of Lake Erie or of the navigable part of the river due to «liversions 
at Niagara. (S. Doc. No. 105. p. 52. Int. Waterways Com.. 7th progress rept., 
pp. 7-8.) 

3. Effect vpox tiu; l.MiiiUiiv or Proper Voi.r.Mi-. oi Nia(;.vha Uiver as a 

BorNDARY Stream. 

The reports make it quite clear (S. Doc. No. 105. p. 13) that no diversions that 
have ever been pro|xise<l will in.juriously affect the river in this regard. (See 
also H. Doc. No. 246. p. 12.) 

4. Effect on Scenic Granokitr. 

On this topic the report ]>i-esents in confusing quantities uifaNurtMueiils. de- 
ductions, diagrams, and photograi)hs designed to show not merely the cffwts 
of power diversions but also the far more dominant effects of other agencies 
upon the appearance of the Falls. Statements of fact are interspersed with 
statements of opinion. It is easy for a cursory rea<ler to infer that aggregate 
effects due to several causes are mainly due to po\^er diversions whose effect 
alone in reality is comparatively negligible. Separating out by themselves the 
figures reported as the effect of present diversions, we find that a present di- 



PRESEEVATION OF NIAGARA FALLS, 69 

version of 19,3.50 cubic feet per second above the npiter casciide. loj^ether witli 
the diversions made by the two Canadian jilants with intaljes below tlie upper 
cascade, are stated to result as follows (S. Doe. No. 105, ]1. 14) : 

Inches. 
Lowering of the crest of the American Falls at l*ros[)ect Point, liftj'-two 

one-thousandths of a foot equals | 

Lowering at Terrai)in Point, twenty-one ene-lnnulre<Iths of a foot equals 2* 

Lowering at west end of Horseshoe Fall, seventy-two one-hundredths of a 

foot equals Si- 

These figures are presented, as statements of fact. With these figures as a 
basis, Maj. Keller states his opinion (S. Doc. 105, p. 14) "that existing diver- 
sions have already seriously interfered with and injured the scenic grandeur 
of Niagara Falls at the Horseshoe." This statement is paraphrased in the 1909 
report of the Chief of Engineers (p. 940) in the widely quoted statement, "As 
a whole, the Falls have unquestionably been seriously injured by the <liversions 
already made. Additional diversions now under way will add to the damage." 
It is evident that these statements of opinion have been Influenced mainly by 
the efl'ects reported at Terrapin Point and at the Canadian end of the Horseshoe 
Fall. The photographs of the American Fall show no sensible differences in 
appearance resulting from far greater variations in river discharge than are 
proposed under the treaty restrictions of diversion, and the reports explicitly 
state that at the American Fall changes are inappreciable and unim]iortant. 
(H. R. Doc. 246, p. 12; S. Doc. 105. p. 14.) The most potent .-igency permanently 
affecting the ends of the Horseshoe Fall is the recession at the apex of the 
Horseshoe due to natural causes. The un\Aatering of the Canadian end of the 
crest of the Horseshoe Fall from this cause prior to any Canadian power 
diversions had progressed so far tliat in 1902 the Canadian park commis- 
sioners caused 250 feet of the former crest line at that time unwatered to be 
filled in for the purpose of improving the scenic effect of the Horsesiioe Fall by 
obliterating certain thin streams which existed only at times of high water. 
Terrapin Point, owing to the continued recession of the Horseshoe, is approach- 
ing the same condition, and unless artificial means are j)rovided for restoring 
the flow a part of the crest line in the vicinity of Goat Island in a few years 
will become dry, entirely irrespective of power diversions. With such condi- 
tions existing at the ends of the Horseshoe a very slight change in the regimen 
of the river from any cause produces perceptible effects at these points, but 
the proposition that the Falls as a whole are seriously injured by the cfim- 
paratively slight changes due to power diversion is one to which few fair-minded 
persons wlio are familiar with the Falls will descril»e. Whatever the effects 
from all causes may be, they may be offset, as pointed f)ut by Maj. Keller 
(p. 15), by placing a submerged weir in the bed of the river immediately above 
the Horseshoe Fall. 

The conclusions as to effect on scenic grandeur, stated in the reports con- 
tained in Senate Document No. Ki.j. must be regarded as supti-seded Ity tlie state- 
ments contained in the later report of Lieut. Col. Rich*', dated ,Sei»t ember . "JO, 1911, 
and printed in House Document No. 240, Sixty-second Congress, second session. 
This rejiort summarizes and brings down to date the earlier repoi'ts. Whether 
or not the figures that it contains are substantially confirmatory of the figures 
given in the earlier report, it is certain that the expressions of opinif»n are more 
guarded and less sensational. Thus Col. Kiche points out ( H. Doc. 246, i). i;>) 
that out of a total lowering of 2(» inches at the Canadian end of tlie lloi-.seshoe 
Fall reported for 1911. more than 6 inches is due to natural recession at the 
apex of the Horseshoe since 19(K'»; aliout N inciies is due to power diversions, 
and over 5 inches is due to defici(Micy in rainfall in tlie waterslied sup])lying 
Lake Erie. Tlie scenic effects of tb.esc aggregated causes are described as (1) 
"An appreciable decrease in the volume of flow;" (2) "Interference with the 
continuity and length of crest line uuiiuestionably marring the natural beauty 
of this cataract." The statement is tlien made that " Natural causes have been 
chiefly instrumental in effecting these changes," but that artificial diversions 
of the i)ower companies "have materially added to the 'injury or interference 
with the scenic grandeur of Niagara Falls.' " The report thus states cate- 
gorically that the changes alleged to have occurred in the aiipearauce of the 
Falls are mainly due to natural causes. It appears to be exceedingly doubtful 
wliether in the absence of natural causes the eftects due to iiower diversions 
alone would be sensible "even to the eye of a trained engineer." although it is 
claimed that they are susceptible of measurement, and it is certain tliat nature 
herself is the dominating agency " marring the natural beauty of this cataract." 



70 PRESERVATION OF NIAGARA FALLS. 

5. Cebtaix Statk.mkxts Compauku. 
(See t.ilmliition •• Exliihit B.") 

TliHif si'onis t(» l»o sonic (lisci-t'inimy betwtvii the ivsults predicted in 190S 
ami those repented in 1911. wiiieh the (Juvernnient enjrineers probably could 
explain. In Senate Document lor». pa.i<e 14, it is pointed out that iu 18!>o there 
was an extremely low stage of Lake Erie, due to deticiency of precipitation, 
which condition, it is stated, " is sure to recur." A very exact i)redietion is 
then made of the conditions that will exist at the crest of the Falls with such 
a low stage of Lalce J]rie. It is stated that at Terrapin Point there will be a 
h)wering of 5^ inches, due to deficiency of jinfipitation. which, addetl to 24 
inches attribntetl to jtower diversion, will make a total lowering at Terrapin 
I'oint of S inches. At \hv west i^m\ of tlic Horseshoe Fall there is prt'dictefl 
a lowering of 14 inches, due to natural lowering of the lake, which, added to 
S.O inches attributed to i)ower diversions, will make a total of 22.1) inches 
(stated as "nearly 2 feet"). l<'rom the tal)ulation herewith, marked Exhibit 
A. it will be seen that the monthly mean levels of Lake Erie during the cur- 
rent year 1911 have approximated very closely those of 1895. In some 
mouths they have been lower than in 1895, the average of the monthly means 
for the year being very slightly liigher than in 1S95. It appears, therefore, 
that the predicted causes have materialized, but the results do not seem to 
correspond with those predicted : thus, in House Document 246. page 13, the 
figures of lowering reported at Terrapin I'oint for 1911 are only 5.48 inches, 
as against over 8 inches predicte<l. while at the west end of the Horseshoe Fall 
the tig\n-es rejtortCNl for 1911 are 8.0 inches due to diversions, and 5 inches 
due to deficiency in rainfall, making a total of 13.(» inches, instead of the 
"nearly 2 feet" predicte<l. In 1911. however, there is reporte<l a further low- 
ering at the west end of the Horseshoe Fall of (> inches, attributetl to rece.ssion 
<»f the apex of the Horseshoe since 1990. The 190S prediction was that under 
file 1911 conditions ''many shallow jilaces at both ends of the Horseshoe Fall 
will l)ecome dry." The changes " will result in a mutilated Niagara — one shorn 
of nearly half its flow and of nnich more than one-half its natural beauty, 
since many i)laces now overflowed will be made l)are. the crest line broken, 
and unify of effect will l)e seriously disturbed." ( S. Doc. 105. p. 13.) The 
language used in the 1911 report to describe the actual results conveys an 
Imitresslon (juite different from that created l>y the prediction. (H. R. Doc. 246, 
]). 13.) It is safe to say that spin-tators of Niagara Falls during the year 
1!>11 would l)e (piite unable to difterent late between the spectacle in-esented in 
1911 and that presented in any other period of corresi)onding lake levels, except 
that the recession of the apex of the Horseshoe and the diminution of the thin 
streams at Terrapin Point, due to that natural cause, might possibly be noted. 

(5. Direct rcfcmicc i<i the Xiaoara Falls Poircr Co. — ( S. Doc. 105. p. 16.) 
It is here statetl that the diversion needed for a maximum ]»rofitable ust> of the 
existing jdant of the Niagara Falls Power Co. m.ay reach a total of over 12,000 
cubic feet per second and tiial ".in increase to the limit of the capacity of the 
existing tailrace tuiuiel may be regarde<l as .-i simple act of .iustice." 

(S. Doc. 105. p. 17.) The following statenient is important: "If the sub- 
merged dam above the Horseshoe Fall previously referred to be built, then 
additional concessions may jtrobably safely be made to the three Canadian com- 
panies." 

(S. Doc. 105, p. 39.) " No photogr;iiil)s were ns: de in this period" (of shut- 
down) " bec-ause it was well known in advance that the small change in diver- 
sion would have no visible effect on the American Fall." 

(S. Doc. 105, p. 139.) "The desirability ;is well as the .iustice of amending 
the Burton Act so as to permit the Niagara Falls Power Co. to divert water to 
the full capacity of its tailrace tunnel are plain." This recommendation is 
made in the report dated September 21, 1909. after mature consideration of all 
of the facts ;ind opinions set forth in the 1908 report. 

7. MiSCEIXANEOUS EXTRACTS FROM THE REPORTS. 

[Senate nocum<>nt Xo. lo.'i. Sixty-socond Confri'pss. first session.] 

He further states that, in his opinion, the damage already done and that 
which may be anticipated from further diversions and from lower stages in 
Lake Erie niay be largel.v. if not entirely, remeilied by a submerged dam placed 
in the bed of the river immediately above Horse.shoe Fall, with the ob.iect of 



PRESERVATION OP NIAGARA FALLS. 71 

diverting a portiou of the gi'eat volume passing over the center or apex of the 
Horseshoe, so as to increase tlie streams feeding the depleted ends of that fall, 
and. incidentally, diminishing the rate of recession of the apex (p. S). 

The interests of justice seem to demand the further statement that, in my 
opinion, the damage already done, and that which may be anticipated from 
further diversions and from the impending fall in tlie level of Lake Erie, may 
be largely, if not entirely, remedied by a submerged dam placed in the bed of 
the river immediately above the Horseshoe Fall. The dam, if properly planned, 
would .serve tt> change the direction of flow, so as to increase the streams that 
feed the Falls at Terrapin Point and at the Canadian shore. The decrease in 
the mighty volume that overflows the center or apex of the Horseshoe would 
not be noticeable. * * * a very direct result of tlie construction of this 
submerged dam would be a diminution in the rate of recession of the apex of 
the Horseshoe. This in itself is extremely desiralile (p. W). 

It is possible, however, that Congress may deem just and desirable some addi- 
tional concession to the power companies, and the following is suggested as a 
basis for discussion : 

It is understood that the intention of Congress, as expressed in the act of 
June 29, 1906, was to preserve to the various i)ower companies rights which 
had already accrued through the investment of capital and the construction of 
fixed plant. 

It is jiossible then that the di\ersions needed for a niaxiinum profltable use 
of the existing plant of the Niagara Falls Power Co. may reach a total of over 
12,000 cubic feet per second. * * * An inci-ease to the limit of the capacity 
of the existing tailrace tunnel may be regarded as a simple act of justice 
(p. 16). 

If the submerged dam above the Horseshoe Fall, previously referred to, be 
built, then additional concessions may probably safely be made to the three 
Canadian companies (p. 17). 

At Buffalo, in westerly gales, the water sometimes rises 8 feet, and in easterly 
gales sometimes falls 6 feet, giving a range of 14 feet ( p. 24). 

It would be unjust to charge the power companies with a lowering of the 
river or lake that might be due to improvements for navigation or to some 
other cause. That these seasonable variations in the river regimen are present 
is also sutticient reason why conclusions drawn from cursory and incomplete 
river examinations might he viewed with suspicion (p. 25). 

So far as effects on Lake Erie and the river above the rapids or on the 
American Fall are concerned, the diversions of the Electrical Development Co. 
or of the Canadian Niagara Falls Power Co. have no bearing (p. 39). 

While the measurements of the Lake Survey have shown with certainty 
that changes in outflow of the Niagara River have had no appreciable effect 
toward lowering Lake Erie in the past 10 years, it is equally certain that Lake 
Erie has already been lowered 3 to 4 inches by reason of the diversion of water 
tributary to the Niagara River, through the Chicago, Welland, and Erie Canals. 

In discussing the injurious effects of diversions at the Falls on Lake Erie 
and on the Niagara River as navigable waters of the United States and upon 
the scenic grandeur of Niagara Falls, other diversions of the water of the 
Great Lakes naturally tributary to the Niagara River need consideration also, 
as the rtual injurious effect is the summatiim of :ill ( i). 49). 

If, however, compensating works are established and a surplus of water 
accumulated against dry seasons, no such .serious lowerings will occur. 

The navigable capacity of the Niagara River is shown by the above cita- 
tions to be not seriously injured by such vohunes of diversion as will fully 
supply the existing installations at Niagara Falls, except when the lowering 
is snijerimposed on the losses of depth coming from other diversions, and from 
periodic, seasonal, or tem))orary low water, as in time of storms. 

The determination of the eftects of water diversion at Niagara Falls on the 
catai-acts themselves and on the rapids approaching them is not so exact a& 
are the effects on the navigable river and the lake (p. 52). 

While th.it se<.-tion of the Horseshoe Fall on the American side of the inter- 
national boundary toward Coat Island shows scant flow and is partially un- 
watei'ed. a restoration of as nnich flow as is desirable does not appear a diffi- 
cult engineering undertaking. Submerged concrete piers at the head of the 
rajiids would effectually thi-ow the current to this section of the rapids and 
Falls (p. 53). 

Any increase of volume of flow over the Falls is .-ilways jiccomiKinied by a 
corresponding loss of height in the Falls (p. 55). 



72 PRESERVATION OF NIAGARA FALLS. 

The continued recession of the apex of the Horseshoe Fall should tend to 
further shoal this area, and heavier diversions by the Canadian companies 
will doubtless leave it diy at times. 

These photographs, and the effects on the American fall shown in the 
equivalent river heights derived from long series of gauge readings, cori'obo- 
rated by the testimony of the actual shutdown of July-August, 1008. tirmly 
establish the fact that the American fall is in no danger of unwatering from 
diversions through the existing canal of the hydraulic company, the present 
tunnel of the power company, or the already constructed penstocks of the 
Ontario Co., even in conjunction with such considerable diversions in the 
Great Lakes above the head of the Niagara River as have been discussed, and 
with the lessened flow of seasons abnormally low in surplus supply. 

The Horseshoe Fall, on the other hand, as shown by equivalent river heights 
and confirmed by the shutdown, appears in serious danger of an unwatered 
crest line at each end, due to all present and anticipated diversions above it, 
and augmented by the upstream recession of the apex. 

It has converted into a spectacle the strength of 5,000,000 horses (p. 56). 

Even in dimensions it can not be said that a third of the grandeur has 
departed when a third of the flow is absent, because the length of the crest 
line may be little shortened, and the height of fall is even greater when the 
river flow is small than when it is large. 

It is only fair to state, because of some erroneous views held concerning the 
injury already wrought on the Falls by diversions, that during the past decade, 
1899 to 1908. for the months June to October, inclusive, the Falls have had a 
fullness of volume and consequent grandeur barelv less than that of tlie prior 
decade, 1889 to 1898 (p. 57). 

While this report has dealt with injurious effects on the Itapids and Falls 
of the Niagara River and with interferences with navigable ways in river and 
lake, and has shown tliese up in their limiting, hurtful amounts, it seems proper 
to suggest certain remedial measures that may serve to harmonize the preser- 
vation inviolate of the scenic grandeur with the useful application of the 
splendid power of the Falls. Both of these things are eminently desirable and 
feasible. 

A volume of 210,000 cubic feet per second with a descent betwo;>n the " dead 
line" and the Upper Gorge of 220 feet lias a potential of over 5.000.000 horse- 
power. This is the power of 15.0t)0,000 strong draft horses, each limited to an 
eight-hour day. If it takes 10 able-bodied men to do the work of one of these 
draft liorses. the work potential in this fall is that of 1.">(>.(K»().(i(Ki men. nearly 
twice our population of men, women, and children. 

The great companies at the Falls have created in good faith power plants 
to lessen the hardships of human labor, to aid transportation, to illuminate 
the night hours, and to add to the wealth of two nations. The power houses 
for the most part are architecturally excellent, harmonizing with the scenic sur- 
roundings, and the mechanical wonders wrought in solving the engineering 
problems of the utilization of this great head and volume of water rival as a 
spectacle the scenic grandeur of the Falls and add to the attractiveness of the 
region. 

It therefore aiJijears proper to permit and foster such ultimate develoi)ments 
In addition to those already in force as are comimtihle with the perpetuation 
of the scenic grandeur appreciably undiminished. 

Provided there be no large increase in uplake div(M-sions, the possibilities of 
continued and extended use of power at the l-'alis are conditionetl upon the 
construction of regulating Avorks in the Niagara River to avoid the wasteful 
outflow ol the water of I-ake Eri<'. The injury to the scenic giandeur of the 
Falls and the interference with the navigable wat(>rs of the Niagara River and 
Lake Erie, due to uj'lake diversions, and the injuiy and interference coming 
from i)eriods of drought would be largely obviated by impounding in the lakes 
a portion the winter outflow. During tlie months of l>ecenil)er to April, in- 
clusive, enough water may be saved to hold the lakes to a proper and economical 
level to the betterment of navigation and yield a surjtlusage to partially offset 
diversions at the Falls. This is a practicable engineering oroposition. but as 
the power companies are beneficiaries they should pay a fair sliare of the cost 
of the work (p. 75). 

The desirability, as well as the justice, of amending the Kurton Act so as to 
permit the Niagara Falls Power Co. to divert water to the full capacity of its 
tailrace tunnel are plain. 

In view of the intimate bearing of this investigation upon the interests of the 
company, and as an acknowledgment of the helpful cooperation of tiu> company. 



PRESERVATION OF NIAGARA FALLS. 



73 



it is believed to be advisable to furuish the company witli a copy of this repon, 
aud permissiou to do so is requested (p. 139). 

Lllouse Document Xo. 24G. Sixly-second Con{,'i-e.ss, second session.] 

As to the effects of diversions, to the extent at present authorized, on the in- 
tegrity and proper volume of the Niagara River as a boundary stream, it is 
not apparent that the river through these diversions has suffered. The upper 
and lower river still continue to discharge approximately the same volume of 
water, the diminished flow being only over the cataracts and the rapids imme- 
diately above. Over this portion the stream, while appreciably decreased, still 
maintains sufficient width and depth to effectively delimit the boundary. More- 
over, it remains impassable and continues to discharge immensely more than 
many of the smaller International boundary streams and has considerably more 
than double the flow of the St. Marys River. 

It is determined that the total authorized diversion of the American com- 
panies, together with the present consumption of the Ontario company, will lower 
the depth on the American Fall about five-eighths inch aud decrease the volume 
of flow about 5 iiev cent. As the lowering will result in uuwatering little, if any, 
of the crest line, and as the decreased flow will be scarcely appreciable, it may 
be considered that the changes on the American Fall are unimportant (p. 12). 

In so far as the inspections disclose, the several companies diverting water in 
the United States from the Niagara River or receiving electrical power in the 
United States transmitted from Canada have at all times complied with the 
provisions of their permits (p. 15). 

In conclusion, it is due to the several companies and their officers to express 
appreciation of their generous cooperation in making supervision easy and 
effective and of their courtesy in acceding to everj' suggestion or request from 
this office (p. 16). 

No clause bearing upon scenic conditions was incorporated in the transmission 
permit of the Niagara Falls Power Co. (p. 18). 

Exhibit A. 
Monthly mean levels of Lake Erie referred to mean sea level at New York. 



Year. 


Jan. 


1895... 


571.79 


1907... 


573. 18 


1908*. . . 


572. 98 


1910... 


571.33 


1911... 


571. 36 



Feb. Mar. 



Apr. May. 



571.10 571.02 571.23 571.58 
572.57 572.281 572.74' 572.83 
572. 46 572. 73 573. 28' 573. 52 
571. 04I 571.62 571.92 572.48 
571.051 571.081 571.201 571.78 



June. July. Aug. Sept 



571.681 571.66 571.52! 571.54 

573.11! 573.26 572.951 572.81 

573.49, 573.35 573.14 572.67 

572.45! 572.37 572.171 571.90 

571.891 571.90 571.87, 571.30 



Oct. 



571.30 
572. 67 
572. OS 
571.98 
571.33 



Nov. 



Dec. 1 Yearly 
[ mean. 



570.81 571.071 571.36 
572.60 572.57, 572.80 
572.13 571.91 572.81 
571.84] 571.68' 571.90 
571. 87ii571. 67 1571.5a 



' Assuming that December, 1911, will be about 0.2 below November, as has been the case in 1908 and 1910, 
the average mean level for 1911 \\i\\ be 571.52, as given above. 

Mean level of Lake Erie, 1860-1875, 572.8. 
Mean level of Lake Erie, 1860-1895, 572. 6. 
Mean level of Lake Erie, 1895-1910, inclusive, 572. 13. 

Exhibit B. 
Loucring at crest of Horseshoe Fall with Lake Erie at level existing in 1911, 





Terrapin 


Point. 


West End. 




Predicted 
in 1908. 


Reported 
In 1911. 


Predicted 
in 1908. 


Reported 
in 1911. 


Attributed to deficiency in precipitation 


Inches. \ 
5.5 ! 
2.5 


Inches. 
2.00 
3.48 


Inches. 
14.0 
8.6 


Inches. 

5.0 


Attributed to power diversions 


8.6 






Total 


8.0 , 


5.48 


122.6 


13.6 


Attributed to recession at apex of Horseshoe since 1906. 


6.0 




! 


i 





' Stated as "nearly 2 feet." 



74 



PRESERVATION OF NIAGARA FALLS. 



Notes Re Reports Published ix Senate Document 105, Sixty- 
second Congress, First Session, and in House Document Xo. 
246, Sixty-second Congress, Second Session. 

(By Mr. C. C. Egbert.) 

The actual facts relating to the effects of the diversions of water by the iiower 
compauies at Niagara Falls upon navigation and the scenery are somewhat 
confused and hidden by statements in regard to the effect of diversions from 
the <ireat Lakes above the Niagara River and in regard to the effec.s due to 
natural changes. Statements of opinions and prophecies as to future condi- 
tions also tend to divert the casual reader from recichiug a correct conclusitni. 
On the other hand, a careful analysis brings forth actual observations of results 
which show that tlie effects of the diversion l»y llie power t-onipauies upon 
navigation and upon the scenery were at the time of the observations insig- 
nificant — so small, in fact, as lo indicate that further diversions by the Ameri- 
can companies up to the limit provided by tlie international treaty of May 13, 
1910, will be inappreciable to any but a skilled t)bserver, using most refined 
methods of determination. 

The determiuati(tn of the effects of the diversions of water by the power com- 
panies at Niagara are largely based upon data obtained during the shutdown 
of the Niagara Falls Power Co. during pan of July and August, 190S, jis de- 
scribed in Chai)ter VIII in Senate Document 105. The effect ol the diversion 
upon the water levels of Lake Erie is best determined by noting the effect upon 
the slope of the river between the Buffalo gauge and the Austin Street gauge at 
Black Rock. Quoting from page 28 of Senate Document 105, " The change m 
the discharge due to backwater effect at Black Rock is of much importance in 
this discussion because it is used in determining the lowering of Lake Erie due 
to river diversion." 

In Table 40, on page 42 of Senate Document 105, are given the daily mean 
water-surface elevntions between July 13 and August (1, liKJS. inclusive, includ- 
ing days before, after, and during the shutdown. The engineers of the lake 
surve.y compare these elevations by computing and correcting them for a com- 
mon lake water-surface elevation, and determine therefrom that the diversion 
of 6,210 cubic feet per second from the Chii)pewa-Grass Island Pool results in a 
lowering in the backwater at Austin Street of 0.02S foot (about Ji inch). It 
is more direct, and perhaps more free from errors of method and of calculation, 
to note the effect by comparing the elevations of water surface at Austin Street 
on days of similar lake levels. This has l)een done below in Table No. 1 on 
days upon which the mean daily water-surface elevations, as shown by the 
Buffalo gauge, did not vary more than 0.02 foot. The lake levels shown by fhe 
Buffalo gauge being equal, the fall in the river between the Buffalo gauge and 
the Austin Street gauge in Black Rock indicates the discharge of the river. 

Table No. 1. — Comparison of daily mean water-surface elevations taken from 
taNe No. JfO &n page 42 of Senate Document 105. 





Elevation iu feet. 




Effect at 


Date. 


Buffalo (A). 


Austin Street 
(B). 


Fall in feet (\-\i). 


Austin 
Street. 


Aug. 5 


573.32 
573.30 
573. 28 
573. 30 
573.26 
573.25 
573.25 
573.25 
573.23 
573.25 
573. 13 
573. 15 
573. 13 
573. 12 
573. 12 
573. 12 


568.19 
568.08 
568. 03 
568. 08 
567. 98 
568.04 
568.04 
568.04 
568. 02 
568.04 
567.92 
567. 94 




Feci. 


Julv 19 




-1-0.09 


,T(ily 14 






July 19. 


5 22 cUirias; '<liut(lown 


— .03 


Julv 13 


5.28 during diversion 




July 22 




- .0, 


July 15 




{ 


July 22 


5.21 during siuit<lo\vn 


.00 


Aug. 4 


5.21 during divcr.sion 




July 22 






Julv 16 . . 




} .CK, 


Julv 21. 


5.21 during shutdown 


July 16 


567.92 
567. 92 
567.90 
5fi7. «•' 






Jiilv 20 




• — .01 


.\ug. 3 




I no 


July 20. 








Mean cfleft unon baokwn 


ter 






- .005 













PEESERVATION OF NIAGARA FALLS. 75 

The effect of the diversion of 0.2] (• i-iihie feet iter second from Cliippewii- 
Grass Ishmd Pool, as shown by the above comparison, is — 0.005 feet (less 
than one-sixteenth of an inch), an amount less than the probable error of ob- 
servation and of the measuring instruments. This method of comi)arison, while 
showing a smaller effect, does not change the conclusion stated on page 49, 
namely : 

"While the measurements of the lake survey have shown with certainty 
that changes in the outflow of the Niagara River have had no appreciable effect 
towaixt lowering Lake Erie in the past 10 years, it is equally certain that Lake 
Erie has already been lowered 3 to 4 inches by reason of the diversion of water 
tributory to the Niagara River through Chicago. Wetland, and Erie Canals.'* 

It may perhaps be surprising to those who have not given the matter careful 
consideration that observations of July 13 to August 6, 1908, did not indicate a 
larger difference in the discharge of the river due to the diversion. The rea- 
sons for the small differences may be explained as follows: The intakes of the 
Niagara Falls Power Co. and of the hydraulic company are located close together 
near the so-called weir at the head of the rapids and immediately below i.slands 
and grass-covered shoals, so that water entering the intakes is diverted throngh 
shallow, tortuous, and weed-obstructed channels, which results in a localized 
lowering in the Chippewa-Grass Island Pool, which lowering reduces the flow 
over the so-called weiv into the upper rapids by an amount approximately equal 
to the diversion. 

While it is said above that the results as compared in Table No. 1 do not 
change the conclusion quoted from page 49, the difference, however, casts a 
shadow of doubt upon the predictions of the effect of further diversion, which 
predictions are based upon the lowering of backwater at Austin Street of 0.028 
foot, due to diversion of 6,210 cubic feet per second. 



[Senate Joint Resohition 14:;, Sixty-seooud Congross, second session.] 

Memorandum by the Niagara Falls Power Co. Indicating In.jury to Existing 
Interests by Passage of this Joint Resolution, Unless Amended. 

This joint resolution purports to be an amendment of the Burton Act for the 
control and regulation of the waters of the Niagara River for the jireservation 
of Niagara River and for other purposes, approved June 29, 1006, in view of the 
provisions of the treaty between the I'nited States and Great P.ritain, pro- 
claimed May 31, 1910. 

By article A' of this treaty, it is declared to be the desire of both the high con- 
tracting parties to the treaty that the limitation of diversion of waters from the 
Niagara River shall be accomplished " with the least possible injury to the 
investments which have already been made in the construction of power plants 
on the Ignited States side of the river, under grants of authority from the State 
of New York, and on the Canadian side of the river, under licenses authorized 
by the Dominion of Canada and the Province of Ontario." 

It is assumed therefore, that the controlling purpose of the treaty, as thus 
.solemnly declared, is to be observed in the legislation of Congress with reference 
to the subject matter of the treaty. 

The act of June 29. 1906. was adopted in consequence of a .special message 
of the President of the United States asking and recommending legislation for 
the protection of Niagara Falls in anticipation of and without waiting for the 
negotiation of a treaty. Therefore, and in advance of actual demonstration of 
the necessity therefor, the act, necessarily complete in itself, imposetl restrictions 
not only upon the diversion of Niagara waters within the State of New York, 
but also upon the amount of power to be transmitted into the United States 
from the Dominion of Canada and there developed from the Canadian Niagara 
waters. 

Considering first the diversion of waters on the American side, it is to be 
observed that the several amounts authorized and permitted under the act of the 
Secretar.v of War, were as follows : 

Feet. 

Niagara Falls Hydraulic Power & Manufacturing Co 6,500 

Niagara Falls Power Co 8,600 

Lockport Hydraulic Co 500 

Total __-_ 15, 600 



76 PRESERVATION OF NIAGARA F.VLLS. 

This diversion of tills auiouut of >.i;i,i;arii water from tlie Auierican Falls has 
[utjved absolutely iiiajiprecialjle to the naked eye of the disinterested observer. 

As to the Niagara Falls PcAvcr Co. it has Iteen found that the computation of 
the waterways commission of b.GOO cubic feet per second was insufficient to fur- 
nish the flow of water actually in operation at the time that the waterways 
commission was in session, and also is unequal to the production of the 100,000 
horsepower which the waterways conniussion intended to allow. 

It is unnecesisiary to amplify this memorandum by references to the testimony 
but the printed report of the hearings before the Committee on Rivers and 
Harbors in I'JOG (II. K. 18024) will fully sustain this proposition. 

It being understood then that by the allowance of 8,600 cubic feet per second 
it was intended to provide for the existing requirements of 100,000 horsepower 
in use by the Niagara Falls Power Co., serious and unintended injustice has 
resulted to that company by the limitation of 8,000 cubic feet. Actual demon- 
stration showed that the amount would yield only about 82,000 horsepower 
and that to produce the 100,000 horsepower intended for the Niagara Falls 
Power Co. it was necessary for that company to have 10,500 cubic feet per 
second. In other words, an increase of 1,900 cubic feet per second. This being 
added to \ln) aggregate amount of 15,(!00 feet allowed upon the American side, 
would make a total of 17,500 feet. / 

Recognizing also the other necessities of the other companies on the American 
side the treaty raised the maximum limit to "a daily diversion at the rate of 
20,000 cubic feet per second," which can not be diminished without inflicting 
serious injury upon the American conqtanies and a <?onsequent loss upon the 
entire conuuunities and industries dependent upon these companies. This 
moderate and reasonable enlargement by the treaty has involved and would 
involve no appreciable injury to the navigability or the scenic beauty of the 
Niagara River and Niagara Falls. 

Similarly the restrictions of the act of June 29, 1906, as to the transmissior 
of power from the Dominion of (.'anada are unnecessary since the ratification 
of the treaty, and by their continuame inflict great hardship upon the Buffalo 
and the Niagara frontier of the Slate of New York. 

The treaty permits the Canadian development by the employment of 36.000 
cubic feet i)er second and there can be no sutficieiit reason why the State of 
New York and the cities of the State of New York should be deprived of the use 
of any part of that Canadian power which can be spared from Canada. This 
particular amount is at the very beginning that which was in contemplation 
as being an amount entirely proper for development in Canada, and being just 
sufficient to meet the requirements of the agreements between the Queen 
Victoria Niagara Falls Park and (he several Canadian companies as follows: 

Cubic feet. 

Canadian Niagara Power Co 9,500 

Ontario Power Co 12,000 

Electrical Development Co 11. 200 

Niagara Falls Park Railway Co 1. 500 

AV'elland Canal or its tenants (in addition to lock service) 1,800 



30, 000 

This aggregate amount somewhat exceeded and exceeds the aggregate of 
350.000 horsepower permitted to be transmitted from Canada into the United 
States by the act of .lune 29. 19(»(!. but the pi<>\ isions of that act authorized a 
larger importation than would be jKissible under the treaty if the Canadian use 
be subtracte<l therefrom. There is therefore i\o suggestion of any increase over 
the possibilities under the P.urton Act. so called, but it is submitted that since 
the maximum of Canadian development has been fixed by treaty there need l)e 
no limitation whatever upon the jiossible ln-nefit to the citizens of the I'uitetl 
States from the free transmission into the United States of the power so devel- 
oped in Canada. 

It is to be observed also that the jurisdiction of Congress is limited to the 
regulation of commerce and the protection of the international boundary as 
such. These ends being safeguarded, the use of the waters for domestic or 
sanitary or power jjurposes is within the rights of the State of New York, and 
the riparian owners, the largest being the Niagara Falls Power Co., which owns 
more than 2 miles of the river l)ank. 

Ry message upon Friday, February 17, 1911, the governor of New York 
called attention to the riirhis of the State of New York and to the necessity of 



PKESEEVATION OF NIAGARA FALLS. 77 

avoiding ni(»nopoly iu tlie use of tliese waters, ixiints wliicli should be recog- 
nized and protected. Tliese considerations have led to the preparation of the 
annexed amendment to the pending joint resolution covering all these points 
and the objections of the governor of New York. It is respectfully suggested 
that without such amendment the joint resolution can not be adopted without 
great injury and injustice to interests which, as above set forth, it was the 
object of the treaty to recognize and to save from unnecessary injury. 

Francis Lynde Stetson, 
For the Niagara Falls Power Co. 



[Senate joint resolution 143, Sixty-second Congress, second session.] 

Proposed Amendment. 

At the end of the joint resolution, page 2. line 9. add the following: 
" Provided, That in fulfilment of the purposes of Article A' of said treaty the 
several amounts of water of the Niagara River within the State of New York 
above the Falls which may be diverted under the said act, or under i>ermits of 
the Secretary of War in i)ursuance thereof, shall be limited only so that the 
total diversion within tlie State of New York of the waters of said river above 
the Falls of Niagara for power purposes shall not exceed in the aggregate a 
daily diversion at the rate of 20.000 cubic feet of water per second, and that 
the Secretary of War shall have authority from time to time to grant revocable 
permits for such daily diversion in several amounts not exceeding in the ag- 
gregate said 20,000 cubic feet per second, nor to any one individual company 
or corporation as aforesaid a maximum amount at the rate of 10,000 cubic feet 
per second ; such grants to be made and continued only with due regard to the 
rights of the State of New York and its grantees in said waters of said river, 
and so that no monopoly shall be thereby created or continued: And provided 
further, That the quantity of electrical power which may by permits be al- 
lowed to be transmitted from the Dominion of Canada into the United States 
may and shall be any and all of the power by said treaty authorized to be de- 
veloped within the Province of Ontario from said waters of said river that shall 
not be used or be required for use in the Dominion of Canada." 

Committee on Foreign Affairs, 

House of Representatives, 
Thtirsday, January 18, 1912. 

The committee met pursuant to adjournment at 10 o'clock a. m. 

The Chairman. The committee will hear Gen. Francis V. Greene 
this morning. 

Francis V. Greene. I am president of the Niagara, Lockport & 
Ontario Power Co., a corporation of the State of New York, and vice 
president of the Ontario Power Co., of Niagara Falls, a Canadian 
corporation. I appear on behalf of those corporations. I think it 
will facilitate the deliberations of the committee if they have certain 
maps and statements before them. I have here a set of maps, one 
for each member of the committee, showing the locations of the power 
plants at the Falls, and the locations of the transmission lines by 
Avhich the power is distributed. 

Mr. Garner. Will it interfere with you now to ask you some ques- 
tions that you can keep in mind as you go on with your argument? 

Gen. Greene. I was going to speak not more than a few minutes 
and then let the committee ask questions. I have also a copy of the 
Burton law and a map of the Falls made in 1876. These photographs 
show the conditions of the Falls. That long photograph was taken in 
1906 when the Burton law was passed. These photographs were 
taken last summer. T have also prepared a written statement con- 

28305—12 6 



78 PRESERVATION OF NIAGARA FALLS. 

tainiiiff facts which answer a great many of the questions that Avere 
asked the other day. The statement is too long to read this morning, 
and I ask the chairman if it can be incori^orated in the proceedings.' 
If the members of the connnittee will glance it over it might suggest 
certain questions. Now. with the chairman's consent. I will have 
these documents placed at each member's desk. 

Xow, as I understand it. Mr. Chairman, the interest of the United 
States in this matter is really to in-eserve Niagara Falls. The Burton 
law is entitled '"An act to control and regulate the waters of Niagara 
River, preserve Niagara Falls, and for other purposes."" The tluee 
things which are mentioned in the P>urton law as bearing upon the 
question were: "Whether navigation was interfered with, whether the 
integrity of the Niagara liiver as a boundary stream was injured, 
and Avhether the scenic grandeur of Niagara P'alls was injured. The 
United States engineers have had these subjects under investigation 
for nearly six years, and have made their elaborate reports, and in 
substance they report that there is no' injury to navigation, tliat the 
integrity of the river as a boundary stream is not affected, that the 
scenic grandeur of the American Falls is in no way affected ; but- 
the}^ think that owing to the lowering of the thickness of the Avaters 
on the Canadian side the Canadian Falls are affected. Now, as to 
the engineering questions, you will notice that there is no injury. 
Gen. Bixby. the Chief of Kngineers, testified explicitly, as I under- 
stand it, on Tuesday that the slight loAvering of Lake P2rie had no 
effect on navigation on Lake Erie. Now, as to the grandeur, the 
opinion of other people than engineers is just as valuable as engineers* 
opinions. The engineers have endeavored to show that the Horse- 
shoe Falls have nine inches less water going o\er tliem in consequence 
of the diversion of water for power ))ur|)oses. That is a very com- 
]:)licated scientific computation — a very comj)licated measurement of 
gauges. Whether it is entirely accurate or not. the fact is not dis- 
puted : but the o))inion that the scenic beauty is affected is disputed. 

I think that the committee can best satisfy itself as to the scenic 
grandeur of the Falls by a visit to the Falls. Failing that, I have 
brought these photographs for the purpose of shoAving that the 
Falls are, so far as the ordinary observer can detect, as handsome 
noAv as they ever Avei-e: that the scenic grandeur has not been injured. 

Mr. Flood. How could avc tell that bv a visit if av(> have ncAcr seen 
the Falls ? 

(Jen. Greene. You Avould lune to compare that with the l)est ])ho- 
tographs. 

Mr. Kendall. Does the floAV of the Falls vary Avith the lake levels? 

Gen. Greene. The levels \ ary from day to day and from month to 
month. 

Mr. Kendall. So that photographs Avould not be a valuable crite- 
rion ahvays? 

(len. Greene. You Avill ahva^'s find that the pliotographers took 
the photographs under the best conditions, so that the old photo- 
graphs are taken to show the best conditi(ms of the Falls; and Avhat 
you .see noAv is comparefl Avith the best conditions before there Avas 
any power plant there. The east wind will diminish the flow of 

' rrinfpd on p. — . 



PEESERVATION OF NIAGAEA FALLS. 79 

water over the Falls by an amount much greater than the total diver- 
sions under the treaty. 

Mr. Garner. Would it divert you for nie to ask the ({uestions now? 
Gen. Greene. No, sir. 

Mr. Garner. Assumino; that this committee will frame legislation 
under this treaty, I would like to ask you to tell the committee what 
reason, if any, there should be for the American side to utilize the 
4,400 feet remaining; and in that connection, to utilize all that, why 
all plans and all propositions with reference to construction should 
not be placed in the hands of the Chief of Engineers or the Secretary 
of War? 

Gen. Greene. The first part of vour question was whether the 
4,400 feet should be used ? 
Mr. Garner. Yes. 

Gen. Ctreene. I see no reason why it should not be used. 
Mr. Garner. Now, being one of the parties interested, what objec- 
tion would you have — and is there an}'^ obstacle in laAv to prevent it — 
to placing the entire consideration of plants for the use of power 
under the Secretary of War. that the greatest amount of poAver may 
be obtained from the use of that water? 

(Jen. (treene. As a matter of fact, I do not suppose a layman's 
opinion would be of any value. I do not know where j^ou could 
find anything in the Constitution to permit that, provided the in- 
vested capital there is not destroyed 

]VIr. Garner. Well, you must presume that the Secretary of War 
would not undertake to destroy any kind of enterprise. 

Gen. Greene. I do so presume, and therefore I see no practical 
objection. 

A ^Ie:siber. Have you any suggestions in respect of that? 
Gen. Greene. Well, I think the State of New York will claim the 
control. 

Mr. Flood. What do you say to turning this control over to New 
York? 

Gen. Greene. I may say that I am not interested in this 4,400 
feet financially, because the power house in which I am interested 
is on the Canadian side, but I think that it ought to be used to get 
the greatest amount of power out of it. Niagara water has become 
very precious, and I think there is no den34ng that statement. 

Mr. Flood. What suggestion have you to make to accomplish that 
result? 

Gen. (ireene. I think the Secretary of War should take up that 
in conjunction with the State of N-ew York. 

Mr. Cooper. The up-State public utilities commission would not 
undertake to divert that. 

Gen. Greene. No. Here is the present public-service law. It 
is a controlling law as to price, and it is absolute. As to the issue of 
securities, they have ample power, but no power is given to them in 
regard to rivers or diversion of water. 

Mr. Cooper. And they would not take up the (question of price 
except ui)on petition? 

Gen. (treene. The laAv is mandatory that upon petition of a small 
number of citizens that the price of electricity is unreasonable they 
shall investigate it. 

Mr. Cooper. Only upon petition? 



80 PRESERVATION OF NIAGARA FALLS. 

Gen. Greene. Onlj^ upon petition. 

Mr. Cooper. They can not act upon their own initiative? 

Gen. Greene. If they act upon their own initiative they never could 
get through with the business. It is all they can do to hear complaints 
now. 

jNlr. Garner. Is it not a fact that this commission has so much 
work to do that it is next to impossible for an individual who claims 
to be paying too much for gas and electricity to get his complaints 
before it? 

Gen. Greene. Xo, sir; the commission is hearing such complaints 
every day in the Aveek. 

Mr. Garner. I was told that the city of Buffalo had now arranged 
a fund of $35,000 for submitting cases to that commission. If it 
takes that much to submit a case to that commission of Ncav York, 
I do not see how private citizens can submit their cases intelligently. 

Gen. Greene. I understand that is for getting expert testimony to 
convince the commission. 

Mr. Garner. Then, if it is necessary for the city of Buffalo to get 
expert testimony for the purpose of convincing the commission. Avould 
it not also be necessary for the ordinarj^ citizen to get expert testi- 
mony to convince the commission? 

Gen. Greene. I did not suppose a private citizen could expect the 
commission to take his word alone. 

Mr. Kendall. General, is there any competition between the com- 
panies in the charge for electrical current? 

Gen. Greene. The power companies are scattered in different ter- 
ritories. The decision of the public-service commission in New York 
is that they will not permit a competition. 

Mr. Kendall. Don't you think that is wrong? 

Gen. Greene. No, sir; I think it is absolutely right, because they 
have the power to regulate the price. Now, 10 years ago 

^Ir. Difenderfer. That commission has the right to fix the price? 

Gen. Greene. Yes, sir. 

ISIr. Difenderfer. They do fix the price? 

jen. Greene. They do. Now, 10 years ago the gas and electric 
v^wmpanies were competing in nearly every town. The result of that 
was the duplication of capital. There was a w^ir between the com- 
panies, and prices were slaughtered. Then the companies got to- 
gether and the price went up and the public paid the bill. 

IVIr. Difenderfer. As usual. 

Gen. Greene. Now, the public-service commission of New York, 
in two or three decisions, has declined to permit two competing com- 
panies, but has fixed the standard of price and quality of gas and 
electricity. 

Mr. Difenderfer. Why should they discriminate? What price is 
Lockport paying for horsepower? 

Gen. Greene. $16 per horsepower. 

Mr. Difenderfer. What is the price paid in Buffalo? 

Gen. Greene. I do not know. 

INIr. Difenderfer. The difference is about 6 miles in favor of 
Lockport ? 

Gen. Greene. Yes. 

Mr. Difenderfer. Now, you are selling electricity at $16 per horse- 
power. Is it not a fact that it is sold in Buffalo at $29 ? 

Gen. Greene. I do not know, sir. 



PRESERVATION OF NIAGARA FALJ.S. 81 

Mr, DiFENDERFER. "V^Hio clo joii think could tell us? 

Gen. GfiEENE. Some representative of the company which sells in 
Buffalo. 

Mr. Dirp^NDERFER. Then, General, I propose to go back to Mr. 
Garner's (|uestion. If an individual were to go before the State com- 
mission and enter a protest against the price charged for electricitj^, 
Avould it be possible for that company complained against to penalize 
the individual? 

Gen. (treene. No, sir. 

Mr. DiFE>'DERFER. Absolutely? 

Gen. Greene. Absolutely. 

Mr. DiFENDERFER. You loiow of uo casc where this happened? 

Gen. Greene. I can not say that I Imow of such a case, because I 
do not know the business of the company distributing power in 
Buffalo; but I say that can not happen, because the public-service 
law provides a remedy for that. 

yir. DiFENDERFER. Ycs ; but if a man is not permitted to take his 
case before th.e commission, the State can not act? 

Gen. Greene. The law says that the commission shall investigate 
if 100 citizens make the protest; but in a population of 450,000 people 
is it your idea that one individual can make his statement and that 
can be accepted ? 

Mr. DiFENDERFER. Xo ; but it should be. 

Gen. Greene. Well, then, if there are not 100 people to say the 
prices are unreasonable, it is quite evident that there is no unreason- 
ableness. 

Mr. DiFENDERFER. Then it is a fact that the city of Buffalo has to 
raise a fund to protect that right ? 

Gen. Greene. Yes, sir. 

Mr. DiFENDERFER. You are an expert in power development ? 

Gen. Greene. Yes. 

Mr. DiFENDERFER. A\liat mcthods are followed in order to get the 
highest efficiency from the present diversion on the American side? 

Gen. Greene. Well, the methods which are followed there, I should 
say, are completely up to date. I am not sure that I know what 
methods you wish me to describe. 

Mr. DiFENDERFER. Ycs ; I would like to have 3^011 

Gen. Greene. The Hydraulic Manufacturing Co. has a canal 
which goes through the city of Niagara Falls and takes the w^ater at 
a point above the river about a mile below the Falls with a very small 
loss of head — a few feet ; it then drops the water through machinery 
into the lower river. 

Mr. DiFENDERFER. The hydroelectric commission of Ontario is a 
distributing company? 

Gen. Greene. Yes, sir. 

Mr. DiFENDERFER. Do you sell it elettricity? 

Gen. Greene. Yes, sir. 

Mr. DiFENDERFER. At wliat price? 

Gen. Greene. At $9.40 per horsepower. 

Mr. DiFENDERFER. How uiuch powcr does your company sell to 
this commission ? 

Gen. Greene. About 20,000 horsepower. 

Mr. DiFENDERFER. Have you any limit as to the amount you are to 
sell to this companv^ ? 



82 PRESER\ATION OF >.'1AGAEA FALLS. 

Gen. Green p:. 100,000 horsepower. 

Mr. DiFENDERFER. Now. wliat is the price that the cities and vil- 
lages ah)ng the frontier of Canada pay to this company? 

Gen. Greene. Akmg the lines of the h3'droelectric commission? 

Mr. DiFENDERFER. Yes. 

Gen. Greene. They pay actual cost without profit; and the law 
says that the actual cost shall be figured at the price paid to the 
Ontario Power Co. for power, plus operating expenses, plus sinking 
fund and interest on the bonds, plus maintenance and depreciation, 
and they divide that among the cities in p'roportion to distance of 
transmission. I think the lowest price named is $1(>, and as far as 
120 miles away at London, my recolection is, the price is $24. They 
are talking of going to Windsor on the Detroit Kiver, and I think 
the price there is $80. 

Mr. DiFENDERFER. Do you think there is a possible prospect of 
their ever doing it? 

Gen. Greene. Possible. 

Mr. DiFENDERFER. Is it probable? 

Gen. Greene. I should say not probable, on account of the distance. 

Mr. DiFENDERFER. So that the Detroit people are not very likely to 
be accommodated from this source? 

Gen. Greene. That is a matter of opinion. 

Mr. DiFENDERFER. Now, then, your company has built on Dominion 
land owned by the park commission? 

(ien. (treene. Yes, sir. 

Mr. DiFENDERFER. You pay rental? 

Gen. Greene. It is $1.50 for the first 20,000, $1 for the next 10,000, 
75 cents for the next, and 50 cents for every horsepower over that. 

Mr. DiFENDERFER. Now, I am speaking of the Canadian side of 
this proposition. These rentals are used for the building of boule- 
vards? 

Gen. Greene. They Avere used for buildings at the park, and now it 
is for a boulevard. 

Mr. Dii'-enderfer. And this money Avas to be used for that purpose? 

Gen. Greene. They are using it for that. 

Mr. DiFENDERFER. Is there any such boulevard on the American 
side? 

Gen. Greene. No ; I think not. 

Mr. DiFENDERiEH. Havc you any reason to give Avhy that proposi- 
tion should not be made for the American side? 

Gen. (jREENE. It is the difference of who owns the huul. The 
Canadian Province owns the land on their side. 

Mr. DiFENDEKi^R. You kuow that this proposition has been sug- 
gested for 30 years? 

Gen. Greene. I did not know- that. 

Mr. DiFENDERFER. I belicve that is a fact. Now, does the company 
make a profit on the power sold to the hydroelectric commission? 

Gen. Greene. Well, until the l)ooks close in a year or two. I would 
not be sure about it. 

Mr. DiFKNDEiJFEU. Well. I don't like to be side-stepped on that. I 
want a different answer. 

Gen. (treene. 1 think we are going to make a slight i)rofit. but T 
am not sure of it. 

Mr. DiFENDERFER. And you make a slight profit? 



PRESEEVATION OF NIAGAEA F^VLLS. 83 

Gen. Greene. Nine forty. 

Mr. DiFENDEKFER. That is for the necessaries? 

(ien. Greene. It is 50 cents tax for 40,000 horsepower. 

Mr. Du'T.NDERFER. What is tiie cost of the transmission of power 
from the Canadian side to the American side ? 

(ien. (iREENE. It depenils upon the distance. You mean just to 
the boundary line or to Syracuse, ICO miles away? 

Mr. DiFENDERFER. Xo ; just to the boundary line. 

(Jen. (jREENE. The cost of transforming and transmitting to the 
boundary line is something like $2 — between two and tw'o and a half. 

Ml-. DiFENDERFER. Xow, supposiug your company to have come 
into the city of Buifalo and not skirted the boundary of Buffalo as 
has been stated here, at what price could j'ou have furnished electric 
poAA'er to the people of Buffalo? 

Gen. Greene. We are furnishing the suburbs at twenty to twenty- 
four dollars. 

Mr. DiFENDERFER. Somc years ago there was a proposition to enter 
the city of Buffalo — your company? 

Gen. Greene. Yes, sir. 

Mr. DiFENDERFER. AMiat were the circumstances under which you 
were to secure that franchise? 

Gen. Greene. AVe were required to put every wire under ground. 

Mr. Difenderfj^r. What else? 

(len. Greene. That was enough to bankrupt us. 

;Mr. DiFENDERFER. Did you not require that you be permitted to 
have the same terms granted you that were granted to the original 
company ? 

Gen. Greene. Xo, sir; there was no use of coming into competi- 
tion with them unless we Avere on an equal basis. 

Mr. DiFENDERFER. But you came in later; so that there was a vast 
improvement in the production of electricity that would have given 
you an advantage? 

Gen. Greene. Xot very great. 

Mr. DiFENDERFER. Is it uot a fact that you did not care to compete 
with the Buffalo people? 

Gen. Greene. We would have been very glad to compete with them 
on equal terms. 

Mr. DiFENDERFER. Could they compete with you on equal terms at 
Lockport or any of the towns skirting the city of Buffalo? 

Gen. Greene. I do not see why they have not. 

Mr. Difenderi<t:r. Why is it they do not? 

Gen. Greene. Because it does not pay. 

Mr. DiFENDERFER. Isn't it a gentleman's agreement? 

(jen. Greene. Xo, sir; absolutely not. 

Mr. DiFENDERFER. Xow\ in the start, giving your testimony here, 
you placed particular stress upon the scenic proposition here, the de- 
struction of the scenery about the falls. Do you know whether or 
not at any time that proposition was created and the point raised 
by the companies themselves in order to throw dust into the people's 
eyes? Do you know whether or not you had a newspaper man em- 
ployed to agitate that question? 

Gen. Greene. I did not ; absolutely did not. 

Mr. DiFENDERFER. Xow, I Understand that the scenic part of it is 
but an incident lieie: that that is the thing that you people are trying 



8 t PEESERVATION OF NIAGARA FALLS. 

to place uppermost before this committee, but I appreciate this fact : 
That there is a far more potent factor back of this, and that is, that 
the people owning these rights to-day should be made to use CAer^^ 
part of the electricity that they can use, at a price that would be 
profitable and at the same time beneficial to the community which 
the}^ serve. If you can serve Lockport at $16 it seems to me that the 
companies are placing an extraordinary burden upon the people in 
the city of Buffalo. 

Gen. (tkeene. Outside of the city of Buffalo we sell at from 
twenty to twenty-four dollars, depending on the quantity. 

yir. DiFENDERTER. What do 3'ou get in Rochester? 

(len. Greene. $25. 

]Mr. Difenderfer. Are you in any Avay associated with the 
Mackenzie-]Mann Co. ? 

(xen. Greene. Xo, sir. 

Mr. Difenderfer. Do you sell them any power ? 

Gen. Greene. No, sir. 

Mr. Difenderfer. Do you buy any? 

(len. Greene. Xo, sir. 

Mr. Difenderfer. Do you know whether or not the General Elec- 
tric Co. buys any? 

Gen. Greene. I knoAv nothing at all about the General 'Electric 
Co.'s business. 

Mr. Garner. General, let us get back to the two original proposi- 
tions. First, is there any objection to utilizing the 4,400 feet; and. 
second, is there any reason why we should not import the full extent 
of the power created in Canada to the United States? 

(iren. Greene. I say there is no reason why you should not take the 
4,400 feet. There is no reason Avhy you should not import the full 
extent of the power created in Canada to the United States. 

Mr. Garner. Is there any reason why we should jiot make a limit 
of cost on both sides ? 

Gen. Greene. I thiidv there is a reason why — because you have not 
the judicial machinery to determine what the price should be. 

The Chairman. With whom, in Aour opinion, should the power to 
fix the tolls be lodged — with the Secretary of War or the New ^'ork 
Public Service Commission? 

Gen Greene. With the Public Service Commission of the State of 
New York, which has given entire satisfaction (o the people of that 
State for more than five years. 

The Chairman. I agree with you about that. 

Mr. Garner. Would there be any objection; and if so, what objec- 
tion, to the United States Government having a commission for the 
purpose of regulating the prices of power to be furnished both from 
the American Government and that to l)e furnished by Canada? 

Gen. Greene. What would be the res])ective limits of jurisdiction? 

Mr. Garner. The United States Avould absolutely control the prices 
from Niagara Falls, it l)eing a navigable stream and a boundary. 
What is the objection to fixing a commission? 

Gen. Greene. The only objection is tliat it lias already been done 
by the State of New York. 

A Member. Is that as to Canada? 



PRESERVATION OF NIAGARA FALLS. 85 

Gen. Greene. Yes, sir. Any power imported from Canada can not 
be sold except subject to the jurisdiction of the Public Service Com- 
mission of New York. 

The Chairman. In that connection, General, I desire to say that 
the State of New York, through the attorney general, Mr. Carmody, 
and the commissioners of public service, with the commissioners of 
conservation, will be represented here next Tuesday. 

Mr. Kendall. General, I notice in your statement that you ap- 
pear on behalf of both the New York corporation and the Canadian? 

(jen. Greene. Yes, sir. 

]Mr. Kendall. Do you know whether there is any community of 
interest ta the extent of there being an identity of stockholders!? 
Are any of the American stockholders interested in the Canadian 
company ? 

Gen. Greene. Some of the stockholders of the Canadian corpora- 
tion are stockholders of the New York .corporation, but in the aggre- 
gate they are a minority and they do not control the New York cor- 
poration. 

Mr. Kendall. But would not their interests be such that they 
would not desire an active competition? 

Gen. Greene. There could not be any competition; one is a dis- 
tributing company in New York and the other is a power-house com- 
pany in Canada ; one sells to the other, 

]\ir. Kendall. You said you did not think it would be proper to 
have any competition between the two sides? 

Gen. Greene. No, sir: I did not say that. 

Mr. Kendall. Yes : but I asked you a iew moments ago if it would 
not be a beneficial arrangement to have a competition, and I under- 
stood you to say that it would not be on account of the New York 
commission regulating it ? 

Gen. Greene. No, sir ; I did not say that. 

Mr. Sharp. Any active competition with the American side. 

Gen. Greene. I do not think you will ever get competition in the 
same locality; experience has shown that that is a failure; it does not 
produce low ])rices. but destroys capital. 

jMr. Sharp. We have been more or less entertained here by people 
representing Detroit interests or the people of Detroit. They ear- 
nestly desire this im])ortation to compete with the higher rates in 
Detroit. Now, if that be 192 miles away, it would be much easier 
to transmit that power from New York. In other words, if a com- 
petition is good for Detroit and other places, I should think it would 
be just as good for New York and the other side. 

Gen. Greene. I do know that the people in New York are entirely 
satisfied with the public-service commissioii. I do know that there 
has never l^een a complaint of the price of power of the companies 
which I re]3resent for six yelars. 

^Nlr. Garner. As I understand you, General, it makes no difference 
how many companies you have, if the commission has the absolute 
power to fix the price there can not be any competition? 

(len. Greene. That is the theory of the law. 

Mr. Garner. In other words, the commission fixes maximum price? 

Gen. Greene. Yes, sir; but you can sell at much less. 

Mr. Garner. Then there is an opportunity for competition under 
the commission law of New York? 



86 PRESERVATION OF NIAGARA FALLS. 

Gen. Greexe. Oh, a'os; but another featuie of tlie law requires 
that the public-service commission shall approve the issue of securi- 
ties, and sometimes they have declined to do that for the purpose of 
making tMo electrical distributing companies. 

Mr. Cooper. Is not the Avhole idea that of making a monopoly? 

(xen. Greexe. A regulated monopoly. That is what railroads are, 
and that is Avliat electrical companies are, and the idea of competition 
is an idea of the past. 

Mr. DiFENDEREER. Is it truc or not that the Electrical Develop- 
ment Co. is practically owned b}' the Mackenzie-Mann interests? 

Gen. Greexe. That is commonly reported. It is common talk. 

Mr. Flood. Do I understand you to say there has been no com- 
plaint on the American side on account of the fact that power is 
cheaper on the Canadian side? 

Gen. Greexe. The Xiagara-Lockport lines extend west as far as 
Dunkirk, and no complaint has been made to us that the rates were 
unreasonable. 

Mr. Flood. People on this side are satisfied to see power cheaper 
on the other side? 

(xen. Greexe. There is no comparison. Do you understand how 
it is sold on the Canadian side? It is sold on a Government bond 
bearing 4 per cent interest and sold at 102^. Now. the members of 
this committee claim that a public-service corporation should not get 
a retui'ii of its capital. 

Mr. Flood. What is the capital of the original company? 

(xen. (ireexe. The company in Canada ? 

Mr. D] it:xderfer. The Ontario Power Co. 

Gen. (xreexe. The amount of outstanding — the amount invested 
in the property is $30,000,000. 

Mr. Flood. That is what it cost ? 

(xen. Greexe. Yes, sir. 

Mr. Flood. What is the cost of both plants? 

Gen. Greexe. The Xew York corporation — about eight or nine 
million dollars. 

Mr. Flood. What is the bond issue ? 

(xen. Greexe. On the Canadian side it is about ten million, but on 
the American side about five million. 

Mr. Flood. What is the capital stock? 

(xen. (xreexe. The capital stock on the Canadian side is about 
$6,000,000 and on the American side about $4,000,000. 

!Mr. Flood. What dividends do they pay? 

Gen. Gkeexe. Neither company has ever paid a dividend. 

Mr. Flood. "\Miat is the stock selling for now? 

Gen. Greexe. There is no active market in either of them. The 
quotations are about 50. 

The Chairmax. There has never l^een any complaint about ex- 
tortionate prices by any citizens of New York against your com- 
panies? 

Gen. Greexe. No. sir. 

Mr. Flood. AVhat did you say tlie stock was selling for? 

(xen. Greexe. Around 50. 

Mr. Flood. Have you laid aside any surplus fund? 

Gen. Greexe. No, sir; the companies are earning something more 
than their interest. 



m 



PRESERVATION OF NIAGARA FALLS. 87 

A Member. You turn that into the company instead of paying it 
out in dividends. 

Mr. DiFENDERFER. What was the original capitalization? 

Gen. Green. That is the original capitalization. 

Mr. DiFENDERFER. Thirteen millions? 

Gen. Greene. Yes. sir; but it has been increased from year to j^ear. 

Mr. DiFENDERFER. How unich was paid into the company or- 
iginally, in cash ? There are two kinds of water, you know — one goes 
over Niagara Falls and the other goes into stock. 

Gen. Greene. Why. the equity over and above the bonds is about 
three or four million dollars on the Canada side and about as much 
on the American side. 

Mr. DiFENDERFER. Now, as a business man j^bu would know who 
your competitors w^ere. would you not? 

Gen. Greene. I should think so. 

Mr. DiFENDERFER. Well, are the Mackenzie-Mann interests involved 
in the Ontario Power Co. ? 

Gen. Greene. Xo, sir. 

Mr. DiFENDERFER. In no way? 

Gen. Greene. No, sir. 

Mr. DiFENDERFER. Are there stockholders? 

Gen. Greene. They are not. 

Mr. DiFENDERFER. I simply ask that because it might explain away 
why the Electrical Development Co. does not ship or transmit power 
to this company. 

Gen. Greene. I think they do not. I ansAver you absolutely that 
they are not interested to a dollar in our company, and there is no 
arrangement with them that they shall bring power to this company. 

INIr. DiFENDERFER. T\Tiy is it that the Mackenzie-Mann interests do 
not bring their electricity to this company? 

Gen. Greene. Because it costs an enormous amount of money to 
build transmission lines and because we have not paid dividends for 
six years they probably think it does not pay. 

. Mr. CooFER. Is there not a very rapid industrial development going 
on in Canada? 

Gen. Greene. Yes, sir. 

^Ir. Cooper. And is it not very probable that Canada will aet all 
of this? 

Gen. Greene. Yes, sir. 

A Member. General, do you believe that this additional transmis- 
sion into this countiy will materially diminish the price ? 

Gen. Greene. No, sir. 

A ^Iember. There would be no benefit in anybody taking the 
power ? 

Gen. Greene. No; because the price at which the power is sold is 
very much less than the price of steam power, and that allows the 
trolley lines to extend their tracks to points they could not otherwise 
reach. 

Mr. Flood. TMiat is the difference in price between steam power 
and electric poAver? 

Gen. Greene. Steam poAver comes someAvhere between forty and 
fifty dollars per horsepoAver. and yet aa-c sell in the vicinity of the 
poAver plant at tAA-elve_ fifty. At Lcx'kpoii: Ave sell at sixteen": :nid at 
Syracuse aa'c sell at thirty. 



88 PRESERVATION OF NIAGARA FALLS. 

Mr. DiFENDERFER. How mucli at Rochester? 

Gen. Greene. T^Yellty-five. In anv event, we are a quarter or a 
third below the price of steam power. 

Mr. DiFENDERFER. How do voii account for your ability to sell it 
ia Eochester for 25 when the charge in Buffalo is 29? 

Gen. Greene. I can not give you any answer in regard to the 
prices in Buffalo, because I do not know their business. 

Mr. DiFENDERFER. Xow, when this treaty was framed between 
this country and Canada — you and I are both laymen on this propo- 
sition ; I am not a lawyer and you are not a lawyer — who was it that 
suggested the 3G.000 cubic feet per second in Cnnnda and the 20.000 
for the American side? 

Gen. Greene. As I understand that, it was made by the Interna- 
tional Waterway's Commission at the request of the Secretary of 
State, who Avas negotiating the treaty. 

Mr. DiFENDERFER. Do you know whether or not any suggestions 
came from these power companies? 

Gen. Greene. Some were made, but they Avere not considered. 
They Avere informed by the Secretary of State that he Avould get his 
own information from the Goyernment authorities. 

Mr. Flood. Did not the suggestion rather come from Canada? 

Gen. Grp^ene. AVell, I have neyer seen the minutes of the meetings 
betAveen Mr. Bryce and Mr. Root. 

Mr. Garner. General, do I understand you correctly Avhen you 
say that these 30.000 cubic feet Avere aAvarded to Canada and 20.000 
to the Ignited States at the suggestion of the Internatitmal Water- 
ways Commission? 

Gen. Greene. In response to the request of the Secretary of State 
for information. 

^Ir. DiFENDERFER. Who gavc that information? 

Mr. Garner. The engineering board. 

Gen. Greene, The International "WaterAvays Commission of that 
time. You Avill find reports in the back history of this matter in the 
investigation of 1006. 

A jMe:mber. March 19, 190G. 

Gen. Greene. You aa^II see that figures up. March 19. 190(;. Inter- 
national WaterAvays Commission, and here is their signed recom- 
mendation. 

Mr. Sharp. General, are you familiar Avith the reasons why this 
discrimination Avas made? 

Gen. Greene. I understand that the reason Avhy the United States 
was allotted 20,000 feet is that about 90 i>er cent of the Falls is on 
Canadian ter-ritory. 

Mr, Sharp, That is AAdiat I thought. 

Gen. Greene. The boundary line is not in the center of the stream. 
but runs through the-thin Avater near Goat Island, and the report of 
the engineers is that only 5 per cent goes over the American Falls 
and perhaps 2 or 3 per cent over the American side of the Canadian 
Falls; so that less than 10 per cent of the Avater of Niagara Falls is 
on the territory of the United States. 

^Ir, Kendall. "Where do you say that boundary line is? 

Gen. Greene. At Terrapin Point. 

Mr. Sharp. Another reason I heard is that the supposed loss of 
the drainage canal at Chicago 



PKESEJ{VAT10N OF NIAGARA FALLS. 89 

Gen. Greene. Oh, that always appears ; 10,000 feet at Chicago. 

Mr. Sharp. Are you acquainted with the operations of the She- 
winnegan Power Co.? 

Gen. Greene. I visited it once. 

Mr. Sharp. Do you know what rate they are getting for their 
power ? 

Gen. Greene. No; I do not. 

Mr. Difenderfer. General, the Ontario Power Co. is a corpora- 
tion ? 

Gen. Greene. Yes, sir. 

Mr. Difenderfer. And it is a power-distributing company? 

Gen. Greene. Yes, sir. 

Mr. Difenderfer. And you are the vice president? 

Gen. Greene. Yes, sir. 

Mr. Difenderfer. So that your association with the Ontario Power 
Co. would be very intimate? 

Gen. Greene. Yes, sir. 

Mr. Difenderfer. Now, the Niagara, Lockport & Ontario Power 
Co. is the company that distributes the power created by the Ontario 
Power Co. ? 

Gen. Greene. Yes, sir. 

Mr. Difenderfer. It is the distributing company? 

Gen. Greene. Yes, sir, 

Mr. Difenderfer. And you take this product at the center of the 
river ? 

Gen. Greene. Yes, sir. 

Mr. Difenderfer. Then, you must have information as to what it 
costs to deliver it to the center of the Niagara Eiver? 

Gen. Greene, I have previously answered that question, 

Mr. Difenderfer. And you say that the MacKenzie-Mann Co., 
w^hich is the Electrical Development Co., could not afford to bring 
it into the United States? 

Gen. Greene. I have made that statement. 

Mr, Difenderfer, How do you dovetail the two — that you can 
afford as a member of these companies to bring this power to this side 
and distribute it to Rochester, and so on, and yet you say the Mac- 
Kenzie-Mann Co. can not bring it here to Buffalo ? 

Gen. Greene. I did not say anything about Buffalo. Of course, 
if there are any representatives of the MacKenzie-Mann interests 
here they can speak better than I can, but if they are not, I would 
say that I would not ask capitalists to put seven or eight million 
dollars into a second transmission company to use their power in 
New York, because it would not produce any return, 

Mr. Difenderfer. Now, then, it would be practically impossible to 
expect that company to deliver any electricity in Detroit under those 
circumstances, would it not? 

Gen. Greene. The MacKenzie-Mann Co.? 

Mr, Difenderfer. Yes. 

Gen, Greene. I don't understand 

Mr. Difenderfer. I am just taking a hypothesis. 

Gen. Greene. I should not expect to make any money by going to 
Detroit. 

Mr. Difenderfer. And you rather an acute business man; you 
have the reputation of being a rather acute business man ? 



9 PRESERVATTOX OF NIAGARA FALLS. 

Gen. Grep:ne. Yes. sir. [Laughter.] 

Mr. DiraNDERFER. Now, the MacKenzie-Mann Co. is 

Gen. Greene. They are rather acute, too. 

Mr. DiFENDERFER. If thev are not able to do it. it is quite evident 
that no other company will ever, within our lifetime, supply Detroit. 
or even Windsor? 

Gen. Greene. Now. when you talk about your lifetime. I don't 
know your expectation of life 

Mr. DiFENDERFER. About three or four years. [Laughter.] 

Gen. Greene. But what is possible in electricity in 15 years that 
DO man can say. It was about 15 years ago that they said we could 
not take the power to Buffalo; now we run cars by it in Oswego. 

Mr. DiFENDERFER. "What do you sell it for in Oswego? 

Gen. Greene. The Syracuse lines run from Syracuse to Oswego. 
Detroit is about 225 miles away. Before the hydroelectric-power 
commission was formed avc considered the idea of going to Detroit, 
but we could not agree with the jicople of Detroit on the price: we 
could not see, from the price they were willing to pay. that it would 
be a successful commercial venture. Now. the hydroelectric commis- 
sion distributing at cost is another proposition. They have figured 
the distance to Buffalo to be 225 miles. Now. I don't want to take 
up the time of this committee, but this matter of transmission de- 
pends on the transmission of voltage: and voltage, in electricity, is 
practically synonymous with pressure. 

Now. when the Niagara Falls Co. took their power to Buffalo 
some 10 or 12 years ago the highest voltage they could get was 
11,000: that was in 189(i, 16 years ago. I think there was a great 
deal of doubt whether it w'as going to be a success, and it Avas a 
success. AVe came along in 1006 and we went to 60.000. The hydro- 
electric power conunission is using 110,000. Now. as I understand 
it. the distance you can take it is approximately proportionate to 
the pressure, and that depends ui^on getting an insulator which will 
hold the cui'rent. 

^Ir. Fix)OD. With 110.000, hoAv far can you carry the current? 

Gen. Greene. I should say 200 miles, or even more, but there is 
a loss, and the steam plants are every year improving in efficiency. 

Mr. Cooper, (xeneral. do you know anything about the develop- 
ment of crude oil — that there are a great many manufacturers wdio 
claim to-dav that thev can make power cheaper than vou can 
fell it? ■ ' 

Gen. Greene. Yes: I know they claim it. but at Avhat price? 

Mr. Cooper. That is. the price which you sell it at. We claim 
that we can make power with our oil engines cheai)er than we could 
buy it from you if you were located in Buffalo. 

Gen. Greene. I don't doubt that, because there has been a very 
remarkable development in crude-oil engines. 

Mr. Dii't:nderfer. Now. at a distance far remote from your plant. 
T Avould state that at the Pardee mine they have an immense amount 
of power that can be used (and I am not informed that they are 
unable to suj)ply it) a great deal more cheaply than the peo])le ai-e 
selling it to-day. 

Gen. Greene. I understand that a hydroelectric plant is being 
constructed at Scranton 



PRESERVATION- OF NIAGARA FALLS. -91 

Mr. DiFENDERFER. Tliis is the Pardee-Areo plant that I am talk- 
ing about, and they claim that for the next oO years they can supply 
electricity without any perceptible decrease. 

Gen. (tf.eene. New York is not blessed Avith culm banks. 

Mr. Di I'TiNnERFER. No; but I say they are getting their culm as 
chea]) as you are getting your water. 

(Jen. Greene. Yes. 

A Member. Ts there any other company that transmits jiower 
into this country except your company? 

Gen. (treene. Xot beyond Butfalo. 

A Mem HER. The P^lectrical Development Co. is not a transmission 
company? 

Gen. Greene. The,y have no transmission lines in the United 
States. 

Mr. Garner. If Congress, acting for the United States, should 
decide that to use the 4,400 feet additional would not aifect the 
scenic beauty of the Falls, and that it was advisable to permit 
Canada to import power into the United States, would not the 
whole (jucstion l)e solved as to the construction of the works and the 
charges, if we should provide that everything should be done under 
the Secretary of War? 

(len. (treene. What are the limits of his supervision? 

Mr. Garner. Limits as to the conditions precedent and the estab- 
lishment of plants in the T'nited States and the ])rices to be charged 
for the i^ower imported. 

(ien. Greene. I do not know about the machinery. 

Mr. Garner. Well. Congress could furnish him with machinery, 
and it is supposed that the engineering department is the best body 
to determine the cost of production. 

Gen. Greene. I was an officer of engineers for 20 years; I would 
not dispute that statement. 

Mr. Garner. Yes; but I am saying that the Engineer Depart- 
ment is the best organization to determine the price. 

Gen. Greene. I do not think that the cost or price is a matter that 
has often come to them as engineers. As to the commercial questions 
as to what returns are fair on an investment of capital, I do not think 
they are experts. 

Mr. Cooper. Genei'al. in answer to a question I asked you, you 
gave as your answer, did you not, that the up-State public utilities 
commission would claim that it woidd be an infringement of their 
rights in New York if Congress undertook to fix the rates? 

Gen. Greene. Well, I would say that there would be two bodies 
with the same ])owers; but what action the State of New York would 
take under those circumstances it is not for me to say. I say that 
here is a connnission that for five years has done that work and done 
it very ^-atisfactorily. Now, if you create a United States agency 
to do that work you have two bodies doing the same thing in the 
State of New York. 

Mr. Cooper. You agi'ee to \\hat seems to be Mr. Garner's idea 
(and it is mine, too) that Congress should delegate to the Engineer 
Department the means by which this power is to be diverted? That 
is. that they should get the maximum results? 

Gen. Greene. Yes, sir: there is no one who can determine better 
than thev how the works should be constructed. 



92 PRESERVATION OF NIAGARA FALLS. 

Mr. DiFENDERFER. Then they have the power to discriminate in 
the prices — the Xew York Public Service Commission? Have they 
the right to discriminate as between localities? 

Gen. Greene. They have the right to discriminate between locali- 
ties, certainly. The price is not the same between 10 miles away and 
200 miles away. 

j\Ir. DiFENDERFER. Then do you not think they have discriminated 
in the prices charged at Buffalo and at Lockport? 

Gen. Greene. They have never investigated it, but they are going 
to do it now. 

Mr. DiFENDERFER. Here you have something like sixty or sixty tw^o 
million dollars of invested capital. The law says that if 100 people 
think the prices are unreasonable the commission shall investigate and 
determine the fact. That acts something like the recall, does it not? 

Gen, Greene. Yes. sir. [Laughter.] 

I say I do not think you can ask that one man should luive the 
power to say anything involving such large interests 

Mr. DiFENDERFER. Oiie man should have that power. One man 
should be permitted to set a precedent for the rest in a decision from 
that board. 

Gen. Greene. You will have to fight that out with the Legislature 
of New York. 

Mr. DiFFENDERFER. Mv Contention is that the public-service com- 
mission of Xew York is not doing its duty to the city of Buffalo. 

Gen. Greene. I have never heard any complaint from the people 
of Xew York. The people that you are desiring to protect are per- 
fectly satisfied. 

Mr. Kendall. The rates in Buffalo are perfectly uniform with the 
rates in Xew York, and if one man has a grievance his neighbors 
ought to have it also. 

Gen. (iREENE. There would be a hundred. 

Mr. Kendall. I think it is not unreasonable at all that a hundred 
should be required to join. 

Gen. Greene. In half a million people? 

Mr. DiFENDERFER. Yes ; but if that single complaint is brought, 
that complaint is public, and I contend that in the citj'^ of Buffalo 
the party making that complaint has been penalized by the company. 

Gen. Greene. Mr. Difenderfer, if you are dissatisfied with the price 
of a railroad ticket from here to Philadelphia, do you claim that you 
have the right to demand of the Interstate Commerce Commission 
that that price shall be reduced? 

Mr. DiFENDERFER. If the railroad company is breaking the law. I 
have that right. 

Gen. Greene. But we are not breaking the law. We are comply- 
ing with the law. 

A Member. The difference is this : Any single citizen can complain 
about a discrimination, but he can not get the general schedule rates 
changed under the law of the city. 

The Chairisian. General, in order to simplify the matter as much 
as possible, let me ask you a few questions. 

We have a treaty with Great Britain, and under article 5 of that 
treaty Canada has the right to divert 36,000 cubic feet of water per 
second and the United States has the right to divert 20,000 cubic 



PRESERVATTON OK NIAGARA FALLS. 93 

feet of water pei- seccHid for power |)iirposes. If there is no k\<>isiii- 
tioii in this matter tlie treaty is self-acting-, is it not? 

Gen. Gree>'i-:. Yes, sir. 

The Chairman. And the United States could then lake tlie 20,000 
feet for power purposes and Canada could take .'i().000 feet ]ipr sec- 
ond for power purposes? 

Gen. Greene. Yes. As to the transmission of power from Canada, 
there is no reason why you should leo;islate. Prior to the 20th day of 
June, 190C). it was perfecth' lawful to do what we were then doing — 
bringing power from Cana(hi to the United States: on the 30th day of 
June, 190G, it was a crime to bring power into the United States from 
Canada unless we had the written, permit of the Secretary of War. 

Ml'. Kendall. Under the Burton Act. 

Gen. Greene. Under the Burton Act what was lawful on the 29th 
of June was a crime punishable by fine and imprisomnent on the oOth 
day of June, and that was tlie ojjject of this legislation. Therefore 
I answer your question as to the transmission of power from Can- 
ada — there is no reason for you to legislate at all. 

The Chairman. The Burton law expires on the 1st of March of 
this year? 

Gen. Greene. Yes. sir. 

The C^AIR:^rAN. The treaty is the supreme laAV of the land. There 
being no legislation, the people of the United States can take the 
20,000 cubic feet per second and Canada can take 36.000 cubic feet 
per second, and the power can come in. from Canada. 

Gen. Greene. As to the transmission, you should not legislate. As 
to the diversion of water, I think you will have to legislate as to who 
shall have this 4.400 feet; to whom it shall go and how. I supposed 
when I read that treaty that it was a matter the commission should 
decide. I understand now that the commission can not do anv- 
thing with it. The War Department can not do anything with it. 
Apparently it is necessarj" to legislate as to who shall get this 4,400 
feet. 

Mr. Sharp. General, what proportion is that to the whole water 
that goes over the Falls — all the water? 

Gen. Greene. The average How, as certified by the United States 
engineers, is 211.000 feet per second. The permissible diversion is 
about 5G,000. 

Mr. Sharp. I imagined that the How was a areat deal more than 
that. 

Gen. Greene. How many tons do you think that will be an hour? 
Two and a half million tons an hour. 

Mr. Sharp. It seems to me that there is something in the claim that 
to diminish the flow would destroy to a certain extent the scenic 
beauty. It is large enough to make us go with caution. 

Mr. Kendall. It is a little more than one-fourth. 

Gen. Greene. That question was asked me in the last hearing, six 
years ago: A^^iat proportion of the water could be diverted Avithout 
interfering perceptibly with the flow of the Falls? I answered: 
"About 40 per cent." I adhere to that opinion, and I have watched 
the Falls very carefully ever since. That would be 80,000 cubic feet 
instead of 56,000 feet. There are a great many other people who are 
very familiar with the Falls who have the same opinion that I have — 
28305—12 7 



94 PRESERVATION OF NIAGARA FALLS, 

that the eii'ect would not be noticeable until you get to 40 per cent. 
Under Mr. Burton's law the 100,000 horsepower that he allows to 
come in would be somewhere between 14 and 15 per cent. 
Mr. Sharp. About half. 
Gen. Greene. A little over half. 

Tlie (^iiAiK.MAX. Now, (leneral, to j^roceed. with whom do you 
think the power should be lodged regarding this additional 4,400 
cubic feet of water? 

Gen. Greene. I think with the War Department, through the co- 
operation of the State of New York. 

Mr. DiFENDERTER. Now, to Avhom shall it be given? 
Gen. Greene. I should say to that company which will satisfy the 
War Department that it will give the most power. 

Mr. Difenderfer. The Alexander bill provided that it would give 
it to two companies. I want to Iniow whether, in your judgment, 
that would be just? 

Gen. Greene. The Alexander bill followed Burton's bill in naming 
certain companies, but that bill is dead. 

Mr. Difenderitir. T understand ; but wouW it be fair to give that 
to both companies? 

Mr. Kendall. That is an ethical question ; on that one man's judg- 
ment would be just as good as another's. 

The Chairman. General, I understand you to say that the right 
to grant the permit for the additional power should be lodged with 
the Secretary of War, and the right to say who shall have it and fix 
the charges should be lodged with the public-service commission of 
New York. 

Gen. Greene. Yes, sir. 

The Chairman. That is all the legislation required, in your judg- 
ment? 
Gen. Greene. Yes, sir. 

The Chairman. Then the people of the United States could buy 
power either from the American companies or from the Canadian 
companies? 

Gen. Greene. Yes, sir. 

Mr. Legare. General, do you know how many visitors are at the 
Falls in a year ? 

Gen. Greene. Our record book shows about 5,000. I do not know 
precisely about the other companies, but I think they are fully as 
large: and they go through the works. That, however, is not the 
total number of people who go to the Falls. 

Mr. Legare. But how many people have the pleasure of seeing the 
Falls? 

Gen. Greene. I was just asking if the president of the Gorge 
Railroad was here; but I think about 150,000. 
A Voice. A million and a half. 
Gen. Greene. Well, I should not like to say. 
Mr. Legare. About a mi]li<m and a half? 
Gen. Greene. Yes. 

Mr. Legare. About how many people are benefited by the use of 
this power? How manv people are supplied with light? 

Gen. Greene. About 2,500.000. and in Ontario about 1,000,000. 
Mr. Legare. About 3,500,000? 
(ien. Greene. Yes, sir. 



PRESERVATION OF NIAGARA FALLS. 95 

Mr. Sharp. I don't know whether it was debated in the Senate, 
but some years ago a prominent member of that body took up seri- 
ously the question of putting a dam above the Falls: and on account 
of the deepening of the canal there is a great agitation now to make 
the Chicago Canal navigable. What effect might come on account 
of this legislation? If the whole amount was diverted and in suc- 
ceeding years there should be a decline in lake levels and this agita- 
tion should increase for diverting a larger amount, what would be 
the effect upon the flow from the Falls? 

Gen. Greene. The dam you speak of is now being considered by 
the International Waterways Commission, under the convention of 
1902. They say they expect to arrive at their conclusion in about 
a year or less, and pending that report I do not feel qualified to say 
anything. You understand that the Avind varies the lake levels to 
the extent of ll feet. 

Mr. Sharp. There is only about 14^ feet difference clear around to 
Lake P]rie. 

Gen. Greene. This 14 feet is at the Buffalo end, due to the east 
wind backing it up and the west wind blowing it down. 

jNIr. Sharp. Acts a good deal like the wind blowing over the lime 
kilns at Detroit. 

Gen. Greene. That is all. How^ever, before closing I put on the 
desk these photographs. The earliest one is 1801. I would like to 
call the attention of tlie members of the committee to (liis. These 
are photographs of 1890 to 1900. I think, IMr. Cooper, in looking at 
the photographs of 1911, thought that that lack of water on Terra- 
pin Point was due to the power comj^anies. 

Mr. Cooper. General, sometimes I don't know Avhat to think about 
those photographs. 

Statement by Francis V. Grkene on behalt- of Niagara, Lockport & Ontario 
Power Co., a New York Cobt-oration, and Ontario Power Co. of Niagara 
Falls, a Canadian Corporation. 

Mr. Chairman, the treaty between the United States and Great Britain in 
regard to the Ixnuidary waters of the United States and Canada was negotiated 
by Mr. Hoot, then Secretary of State, on behalf of the United States, and by 
Mr. Bryee, British ambassador, on the part of Great Britain; it was signed by 
them on January 11, 1909 : the Senate of the United States gave its consent, 
under certain conditions, to its ratification by resolution dated March 3. 1909. 
The eonditions imposed by the Senate delayed the ratification by Great Britain 
for a year, but it was ratified by Great Britain on March 31, 1910; by the 
Presiilent on the following day, April 1, 3910; the ratifications were exchanged 
at Washington on May 5. 1910, and the treaty was proclaimed by the President 
on May 10. 1910. 

The fifth article of said treaty relates to the diversion of the waters of the 
Niagara River above the Falls, and is in the following language: 

"The High Contracting Parties agree that it is expedient to limit the diver- 
sion of waters from the Niagara River so that the level of Lake Erie and the 
flow of the stream shall not be appreciably affected. It is the desire of both 
Parties to accomplish this object with the least possible injury to investments 
which have already been made in the construction of power plants on the 
United States side of the river under grants of authority from the State of 
New York, and on the Canadian side of the river under licenses authorized 
by the Dominion of Canada and the Province of Ontario. 

" So long as this treaty shall remain in force, no diversion of the waters of 
the Niagara River above the Falls from the natural course and stream thereof 



96 PRESERVATION OF NIAGARA FALLS. 

shall be ijeniiitted except for the purposes aiul to the extent hereimifter 
provided. 

"The I'lilted 8t:ites may authorize and periuit the diversion within the State 
of New York of the waters of said river above the Falls of Niagara, for power 
purposes, not exceeding in the aggregate a daily diversion at the rate of 
twenty thousand cul)ic feet of water per second. 

"The I'nited Kingdom, by the Dominion of I'anadn, or the Province of 
Ontario, may authorize and permit the diversion within the Province of On- 
tario of the waters of said river above the Falls of Niagara, for power i)ur- 
poses, not exceeding in the aggregate a daily diversiim at the rate of thirl y-six 
thousand cubic feet of water per second. 

"The prohibitions of this article shall not apply to the diversion of water 
for sanitary or domestic jiurposes or for the service of canals for the purjioses 
of navigation." 

Two l)i]ls are now pending in the House of Representatives, to wit. II. K. 
0746, introduced by Mr. Smith, of Buffalo, and II. It. 7694, introduced by Mr. 
Simmons, of Niagara Falls, the title of both l)ills being identical, namely, 
" To give effe<'t to the fifth article of the treaty between the United States :ind 
iireat Britain signed Jai.ur.iy 11, 19(t0." I understood it is the purpose of your 
committee to prepare legislation which shall be definite, final, and comidcte 
for the purpo.se of giving effect to Article V of the treaty, and that in prepar- 
ing this legislation you will consider and reach a conclusion on the following 
questions : 

(«) Is any legislation netnled. or is the treaty self-acting? 

(&) If legisliition is needed, shall such legislation permit the diversion on 
the American side of all the w.iter permitted by the treaty, or shall it restrict 
the diversion on the American side to the amount now diverted or to some 
other ;>moinit less than that i)ermitt(Hl by the treaty? 

( c) If the amount ;nith(n'ize<l by the treatj' to l)e diverted on the American side, 
which is 4,400 cubic feet per second more than is authorized there to l)e diverted 
by the Burton law, how is the allotment of this additional 4.4(K) cubic feet 
per second to be determined ; and what commission or department of the Execn- 
live (iovernnienl is to determine this allotment and see that it is not exceeded? 

((Z) The treaty places no restriction whatever upon bringing into the United 
States the power generated on the Canadian side of the Niagara River. Is it 
desirable to place anj- such restrictions or is it better to allow the peojile of 
the United States to have the use of all the Niagara power that can be brought 
into the United States? 

This matter has been before Congress for six years, but as this is the first 
time the matter has been brought before tliis committee it may perhaps save 
time and answer in advance a great many questions that would otherwise be 
asked, if I should state as briefly as possible the provisions of previous legis- 
lation and the situation at the Falls at the time that such legislation was 
enacted. 

In the autumn of 1905 there were, then as now, four pow^er companies ' and 
five power houses at or near the Falls using the water from above the Falls. 
On the American side there were two New York corporations deriving their 
powers from the Legislature of the State of New York, namely, the Niagara 
Falls Power Co. and the company whose corporate name is now the Hydraulic 
Power Co. On the Canadian side there were three Canadian corporations, 
namely, the Ontario Power Co. of Niagara Falls, the Canadian Niagara Power 
Co., and the Electrical Development Co. (Ltd.). Three of these companies and 
four of the power houses and the works connected therewith were entirely 
owned by American citizens. 

In 1905 the companies had made their plans and entered into contracts for 
the sale of the greater part or all of the following amotmts of power, which 
by the laws then existing and by their agreements with the State and provincial 
authorities on both sides of the line they were fully authorized to make, as 
follows : 

' There are two .\nierican .ind three Canadian corporations : but the Canadian Ni:i;:ara 
I'ower Co. is (>ntirely owned by the Niajrara Falls Power Co.. so that the niimbiM- of 
in.'ii>ppnrtent companies is four. 



PEESERVATION OF NIAGAKA FALLS. 97 

On the Anioricaii sido: Horsepower. 

Niagara Falls Power Co 1 85, 000 

Hydraulic Power Co 120,000 

Total 205,000 

On the Cauadian side : 

Ontario Power Co 180,000 

Canadian Niagara Power Co 110,000 

Electrical Development Co. (Ltd.) 125,000 

Total 415. 000 

Total on both sides 620,000 

The works of all of these companies at all five of the power houses were in 
various stages of progi'ess, but all of them had been undertaken on plans calling 
for construction of the size above named, and all of them, ns above stated, 
in compliance with the laws, ordinances, and franchises which had hitherto 
been granted by competent authority. 

In tlie autumn of T.tOf) the slateuieut was made in various jiapers that Niagara 
Falls had been partially ruined and soon would be completely desti-oyed by the 
power companies, and legislation was sought to preserve the Falls from this 
alleged danger. A bill for this purpose was introduced by Mr. Burton, then a 
Representative from Ohio and chairman of the Rivers and Harbors Committee, 
and after elaborate hearings during the session of six years ago this bill 
finally became a law on June 29, 1906. This law made it a misdemeanor, pun- 
ishable by fine and imprisonment, to do certain things which up to the day 
before had been perfectly lawful. The things thus forbidden were : 

(d) To divert any water from the Niagara River. 

(h) To transmit any power from the Dominion of Canada into the United 
States without the written permit of the Secretary of War; and in granting 
such pei'mits the Secretary of War was authorized to grant them for diversion 
of water on the American side only "to individuals, compnnies. or corporations 
which are now actually producing power from the waters of said river or its 
tributaries, in the State of New York, or from the Erie Canal," and to an 
amount in the aggregate not exceeding ir>.(;()0 cubic feet per second: and he 
was further limited in the matter of granting ]iermits for the transmission of 
power into the United States by the provision " that the quantity of electrical 
p<^)wer which may by ])ermits be allowed to be transmitted from the Dominion 
of Canada into the United St;ites shall be 100.000 horsepower." 

The title of the law approved .Tune 29, 190G, reads as follows: "An act for 
the control and regulation of the waters of Niagara River, for the preservation 
of Niagara Falls, and for other purposes." 

In the hearings before the Rivers and Harbors Committee i)rior to the enact- 
ment of this law some question had been raised as to the right of Congress to 
control the waters of the Niagara River for any other ))uri)oses than that of 
navigation, and some doubt had been raised as to what i)artifular clause of tlie 
Constitution gave to the Congress of the Ignited States the right to enact legis- 
lation for the preservation of Niagara Falls. Therefore the fourth section of 
the law requested the President of the United States to negotiate with the Gov- 
ernmeut of Great Britain " for the i)urpose of providing by suitable treaty with 
said Government for such regulation and control of the waters of Niagara River 
and its tributaries as will preserve the scenic grandeur of Niagara Falls and 
of the rapids in said river." These negotiations were promiitiy undertaken, and 
resulted in the treaty which was signed, ratifitnl. and pro<-lainied on the dates 
above named. 

As the act of June 20. liKKJ. was intended only to take care of the sitnati«m 
until the treaty should be negotiated and ratified, section 5 of the law enacted 
that the "provisions of this act shall remain in force for three years from and 
after the date of its passage." When the three years exiiired the treaty, 
although signed, had not been ratified by both jtarties. and therefore the pro- 
visions of the law were extended for two years, or until June 2!), 1911. In the 
last session of the Sixty-first Congress resolutious were introduced for extend- 
ing rhe P.nrton law. and bills were introduced for giving effect to the fifth 
article of the treaty. I)ut none of them passed, and thus the Burton law expired 
on June 29, 1911. 



98 PRESERVATION OF NIAGARA FALLS. 

4 

On the last day of the special session, namely, August 22, 1911, a joint reso- 
lution w:is ado])tO(l revivins. reenacting. and extending the provisions of the 
:ict of 11KJ6 to March 1, 1012. 

One of the provisions of the Kurton law of 1906 authorized the Secretary of 
War, in his discretion, to grant revocable permits for the diversion of water in 
excess of l.'^.COO cubic feet ])er second " to such amount, if any, as, in connection 
with the jnnount diverted on the Canadian side, shall not injure or interfere 
witli the navigable caiiacity of said river or its integrity and proper volume as 
a boundary stream, or the scenic grandeur of Niagara Falls." In order that 
the Secretary of War might be advised as to the probable effect of these diver- 
sions and could intelligently exercise his discretion as to granting such re- 
vocable permits for additional diversions, instructions were sent e.irly in 1907 
to the otiicer in charge of the lake survey directing him to make observations 
and to report from time to time the result of such observations and measure- 
ments, so as to show tlie effect of such diversions upon : 
(o) The navigable capacity of said river. 
(&) Its integrity and proper volume as a boundary stream, 
(c) The scenic grandeur of Niagara Falls. 

The reports made in compliance with these instructions have been transmitted 
to Congress and are embodied in Senate Document No. 10.5 and House Document 
No. 246. of tlie present Congress. 

Briefly, the reports of the engineers are to the following effect: 
(a) As to the navigable capacity, they say (Doc. No. 246. p. ^2). that the 
diversions referred to : 

"Will not injure or interfere with tlie navigable capacity of the Ni.igara 
River." 

(6) As to the integrity and proper volume as a boundary stream they say 
(same page) : 
" It is not apparent that the river through these diversions has suftereil."' 
(c) As to scenic grandeur (same page) : 

" It may be considered that the changes on the American Fall are unim- 
portant." 

In other words, the effect of the diversions does not interfere with the navi- 
gation of the Niagara River, does not injure its integrity and proi)er volume as 
a boundary stream, and does not injure the American Fall. 

Tlie engineers, however, report (H. Doc. No. 240. p. 13) thiit the effect of 
these diversions is to cause a lowering of Lake Ph-ie which, though slight, in 
their opinion " Can not be considered negligil)le." and they also find that there 
Las been a lowering at the eastern and western ends of the Canadian Fall, as 
to which they say : 

" While natural causes have been chiefly instrumental in effecting thes(> 
changes, it appears indisputable that tlie artificial diversions of the power com- 
panies have materially added to the ' injury or interf<M'ence witli the scenic 
gi-andeur of Niagara Falls.' Additional diversions, now contemi)lated. will 
increase this damage." 

In other words, then, they find that these diversions have affected the level 
of Lake Erie and have contributed to the injury of the scenic grandeur of 
Niagara Falls, the greater part of which has been produced by natural causes. 
As to the lowering of Lake Erie, it is measured in fractions of 1 inch. The 
calculations are of a most comi)licated. scie'ititic char.ictcr. So f.ir as I know, 
tliis is the first attempt to study the hydraulics of a greit river with .a view to 
determining in spec-ific quantities the effect u])on the level of the lake which 
discharges into tlnit river, of diverting a small portion of the flow at a point 
over 20 iniles below the lake, during which distance the river falls .about 11 
feet. Tlio result is extremely interesting from a scientific standpoint. Inil it 
can hardly be considered as final and conclusive: for whereas it has tiken the 
observations of 40 years to determine within an error of 1 to 2 per cent the 
relation betwee-i the level of the lake and the volume of discharge of the 
stream, these results undertake to define the variation in the discharge of Lake 
Erie to within one-third of 1 per cent, and they are based uiion two series of 
(bservations. each of 10 days" duration, during one of which the American 
power houses were slu^t down and during the otlier v.-ere ia ojieration. 

Theoretically the drojiping of a stone into the pool of still water nbove 
Niagara Fallswould create a ripple which would travel liack to l-ake lOrie. ami 
could there be measured in millionths of an inch if there were any instrum(Mits 
capalile of such measurement. The measurements in this case are in fi-jictions of 
an inch. The report of Gen. Bixby. Chief of Engineers, dated October 14. 1911 (p. 



PKESERVATION OF NIAGARA FALLS. 99 

3114), says that the effect nijoii Lake Erie of the nieroased diversions since T.M)6 
has been oue-fourth of an inch. The report of Lient. Col. Riclie (H. Doc. No. 
246, p. 12), says that the total effects of the present diversions are tlie lower- 
ing of Lake Erie 1^ inches. The report of Mr. Sheuahou, principal assistant 
engineer (S. Doc. 105, p. 49), which accompanied Maj. Keller's re|iort. dated 
November 30, 190S. says that " the measurements of the Lake Survey have 
shown with certainty tliat changes in outflow of the Niagara River iiave had 
no appreciable effect toward lowering Lake Erie in the past 10 years." 

The sum and substance of these reports is. that while tlieVe has been a 
minute change in the level of Lake Erie, it is so small tliat it has had no 
jippreciable effect upon navigation. This was ilie testimony of (Jen. Rixby at 
your hearing on Tuesday last. The navigable wafers of the I'uited States are 
in the charge of the Army <'ngineers. under the direction of the Secietary of 
War. These engineers are, on tlie subject of navigable waters and navigation 
thereon, the first experts in the country. I think your committee may safely 
disnuss from your minds any ai)])rehension that the navigation on the" naviga- 
ble waters of the United States is in any slightest degree injui-ed oi' affected by 
such diversion of water in the Niagara River as is permitted l>y tlie treaty now 
in force. 

As to scenic grandeur, that is not a question of eugineerlng. Engineers have 
reported that while there is [iractically no rliaugo on ihe American Fail, there 
have beeu changes on the Canadian Fall amounting to a lowering of 1.") inches 
at the Canadian end and 3A inches at the (Joat Island end of that fall (H. Doc. 
No. 246, p. 13). Of this they attribute appr'oxiniiitely two-thirds to the diver- 
sions of water and one-third to the brejiking away of the ai)ex of the Horse- 
shoe Fall. They say that this has resulted in (H. Doc. No. 246, p. 13) "a 
mai-ked interference with the ct)ntinuity and length of crest line, umiuestiou- 
ably marring the natural beauty of this cataract." 

The facts here stated, namely, a total lowering of 15 inches, are not disputed, 
although it should be noted that the gauge readings from which these facts are 
deduced show a variation of as much as 5 feet in the course of the yeai' and as 
much as 3 to 4 feet in as many successive days. It jirobably will require a 
longer series of observations to determine with absolute certainty the i)recise 
extent, in inches, of the decrease in depth at the crest of the Falls due to the 
diversion of water for power purposes. INIeanwhile. the determinations above 
quoted are the best we have and are not disputed. 

As to the opinion formed by the engineers from a fonsideration of these 
facts, there is, however, a very wide difference. The Falls vary from day to 
day, according to the wind and the weather. An east wind will diminish the 
volume of the Falls by an amount greater than all tlie diversions of water for 
power purposes which are jHissible under the treaty. The bright sunshine in 
summer will bring forth that marvelous emerald tint at the i»oint of greatest 
depth in the Horseshoe Fall concerning which so much has been written, and 
at the same time will show in dazzling white the purity of the American Fall. 
Cloudy days, rainy days, snowy days, all have their diff'erent effects, and 
fre(iuently, in times of extreme low temjierature at the close of a loni; winter, 
with much ice coming out of the lake, the American Fall is absolutely dried 
up. and people have walked across the I)ed of the river between Coat Island 
and the main shore. There is a well-aulhentii-ated case of this r)0 or (".0 years 
ago, befoi-e diversion of watei- foi- ])ower puiposes was ever thought tif. 

Now. the point that I would like to impress upon your minds is this: Tluit 
the Falls vary in appearance from day to day and month to month and year 
to year: yet under similar circumstances of wind and weather there lias been 
no change in their appearance which can be detected by the eye. excel »t at the 
apex or point of the Horseshoe. At that ]>oint the crest is receding .-it the rate 
of over f) feet per annum (S. Doc. No. 105. ]i. 32), and those of us who first 
saw the Falls 40 years ago can detect the change in the shape of the crest. 
It is more i»ointed now tlian it was then: but no other change is percei)til>le 
under the same conditions of wind and weather. It is the constant remark of 
visitors who come to the Falls that the ai.tpearance of the Falls is Just what 
it W.MS wlien they saw them years ago: or, l)y those who see them fw the first 
time, the remark is one of surpi'isi^ tbat the Falls ai'e so l)eautiful in view of 
the statements scattered broadcjisl that they had been practicall.v ruined. Sev- 
eral western governors recently visited the Falls and gave expression to these 
o])inioiis. 

Scenic grandeur appeals to the imagination, to the emotions: it appeals dif- 
ferently to different iieople. You wili tind all kinds and varieties of opinions 
concerning it. and vou will also find many shailes and v.irieties of oiiinions as 



100 PRESERVATION OF NIAGARA FALLS. 

to whether sceuic grandeur should be allowed to interfere witli tlie industries 
and prosperity of citizens of the T'nited States. Lord Kelvin, several years 
ago. as I am told, expresseci the opinion that if these Falls were needed for the 
benefit of mankind, all of their potential energy should be so utilized; and on 
the other extreni<e, Mv. McFarland. the president of the American Civic Asso- 
ciation, would probably tell you that he thinks that a Nation which is rich 
enough to build the Panama Canal is rich enough to buy up every power plant 
at Niagara Falls, destroy them, and stop the use of a single drop of water for 
power purjioses.' Between these extremes some compromise must be reached. 
The existing treaty was under negotiation for more than two years, and I 
imagine that the chief cause of delay was a desire to find a iair compromise. 
The language of Article V of the treaty intimates this. I believe it may fairly 
be taken for grante<l that the limitations named in the treaty are about right, 
and that the full amount of diversion on both sides of the river, namely, 50,000 
cubic feet per second, can be taken without appreciably affecting the scenic 
grandeur of the Falls. This, however, is the very question which your com- 
mittee is to decide, namely, whether the limitations of the treaty are to prevail, 
or whether further and additional limitations .ind restrictions are to be imposed. 
In considering this question, howeA'er, I wish to call your attention to the 
fact — and I do not think this will be disputed by any intelligent man who is 
familiar with the sub.iect — that the sole effect of any restriction on the bringing 
of power from Canada into the United States is to drive American industries 
into Canada. This restriction on transmission was inserted in the Burton law 
on the theory that if the power was not transmitted into the United States it 
could not be sold in Canada, and therefore in this way a limitation could be 
imposed on the use of Canadian water for power purposes. This theory is 
entirely fallacious. At the time the Burton law was enacted only two of the 
Canadian power houses were in operation, and the total amount of Niagara 
power sold in Canada was less than 3,000 horsepower, as follows: 

Horsepower. 

Ontario I'ower Co 250 

International Railway Co 1.200 

Canadian Niagara Power Co 1,340 

Total 2.790 

At the present moment the sales of Niagai'a power in Ontario are ne.irly 
90.000 horsepower, as follows: 

llorst'ijowcr. 

International Railway Co 1,500 

Canadian Niagara Power Co 500 

The Ontario Power Co 45.000 

Electrical Develoinnent Co. (Ltd.) : 40.000 

Total 87,000 

In other words, there has been a growth in less than six years of from ."'..OOO 
to nearly 90.000 horsepower, and there is no sign of any abatement in this 
growth. 

The three power hou.ses on the Canadi.iu side are situated in (^uecn Viciori.i 
Niagara Falls Park, a beautiful park which has been created from the itroceeds 
of the amounts paid by these power companies to the government of Ontario 
by way of rental for the occupation of lands and iiayment for [iriviK-gcs 
granted. The agreements between the Ontario government, reiiresented i>y the 
park commissioners, and the power com])anies provide that, if reiinired in 
Canada, on-half of the power genarated at these power houses shall be reserved 
for the use of Canadians. The other half can be exported to the T'nited States. 

> The opposing considorati«>iis as lielwcon nlilit.v and scenic grandeur are fairly well 
Ptnled b.v the engineers in the I'ollownig language tS. Doc. No. 105. p. 73) : 

•'The' great comiiaiiies at the F;ills have created in goad faith power plants to lessen 
the hardships of Inimau l.-ihor. (o aid transportation, to illnminat<' the night hours, and 
to add to the we.-ilth of two .Nations. The power houses for the most i>art are archi- 
tecturall.v excellent, harmonizing with the scenic surroundings, and the niech.-mical 
wonders' wronglit in solving the engineering prohlems of the utilization of this ureat 
head and volume of watei' rival as a spectacle the scenic grandeur of the Falls and add 
to the attractiven(>ss of the region. 

'■ It therefore appears proper to permit and foster such ultimate developments in addi- 
tion to those alread.v in force as are conip.-ititile with the perpetuation of the scenic 
grandeur appreciably' undiminish(>d." 



PRESERVATION OF NIAGARA FALLS. 101 

The cli.irter of tbe Ontario Power Co. granted by the Dominion of Canada 
coutahis an express provision that its power may be transmitted into tlie 
United States, and this interpretation of the charter right has been explicity 
stated in a decision of the snpreme conrt of Canada bearing on this subject. 
This nnlimited right to take the power to the United States, however, has 
been diminished to the right to transmit one-half of the power (instead of the 
whole) by the agreement with the park commissioners above referred to. 
Now, the plans have been ai)proved by the park cnnnnissioners for the con- 
struction of works of the following capacity : 

Horsepower. 

Ontario Power Co 180,000 

Canadian Niagara Power Co 110.000 

Electrical Develoinnent Co. (Ltd.) 125,000 

Total 415. 000 

and, while none of the power houses is completed to that ultimate capacity yet, 
each of them is about two-thirds completed, and work is at the present moment 
progressing on the remaining one-third. 

One-half of the total amount is 207,500 horsepower. In a little more than 
five years Canada has absorbed practically 90,000 horsepower of this. Un- 
doubtedly it will absorb the remaining 11T,50<1 horsepower. The amount which 
can be taken into the United States under the provisions of the contracts witli 
the park commissioners is the remaining one-half, to wit, 207,500 horsepow'er. 
The Burton Act allows the transmission of 160,000 horsepower, so that all that 
is in question, if you remove every restriction in regard to the transmission 
of power into the I'nited States, is 47,500 horsepower. 

In 1906-7, after elaborate hearings, the Secretary of War, Mr. Taft (now 
President of the LTnited States) allotted, under the provisions of the Burton 
Act, the 160.0(X) horsepower allowable to be transmitted into tlie United States 
as follows: 

Horsepower. 

Ontario Power Co 60,000 

Canadian Niagara Power Co 52, .500 

Electrical Development Co 46,000 

International Railway Co 1,500 

Total : . 160. 000 

The amount actually transniitled at present is as follows: 

Horsepower. 

Ontario Power Co 57,000 

Canadian Niagara Power Co 52. 500 

Electrical Development Co ^ 

Total 109. 500 

The load of the Ontario Power Co. fluctuates from^day to day and on any 
day may go to 60,000 horsepower, the full amount of tlie permit. The Canadian 
Niagara Power Co., having plants on each side of the river which are inter- 
connected, is enabled to so ojierate them as to keep a steady load on its 
Canadian plant practically at the full amount of its permit. 

It is pi-ohal)]e that a representative of the Electrical Development Co. will 
be present to give the reascms why the i>erniit granted to that company has not 
been utilized. 

So far as ihe Ontario Power Co. in Canada and the Niagara. Lockport & 
Ontario Power Co. in New York State are concerned the situation is as follows: 

We are now taking into New York 60.000 horsepower and distributing il 
among a population of more than 1.000,000 i)eop]e. extending from Syracuse and 
Oswego on the east, through Auburn, Iiochet>ter, Batavia, Lockport, the suburbs 
of Buffalo, to Dunkirk on the west. If the restrictions on the transmission of 
power from tlie Canadian side are removed, we shall be able to increase the 
amount of power distributed through these various cities by one-half; that is. 
to 90,000 horsepower. If these restrictions are not removed this additional 
30.000 horsei)ower will speedily be sold in Canada. 

Referring then to the questions which I understand you are considering, 
which were enumerated at the beginning, and for convenience, may now be 
repeated as follows: 

(«) Is any legislation needed or is the treaty self-acting? 



102 PEESERVATION OF NIAGARA FALLS. 

(&) If legislation is needed, shall such legislation permit the diversion on the 
American side of all the water iiennittiHl by the treaty, or shall it restrict 
the diversion on the American side to the amount now diverted or to some other 
amount less than that permitted by the treaty? 

(c) If the amount authorized by the treaty to be divertetl on the American 
side, which is ■1.4C»0 cubic feet i)er second more than is authorized there to be 
diverte<l by the Buitou Law. how is the allotment of this additional 4.400 
eul)ic feet per second to be determined, and what commission or department of 
the Executive Government is to determine this allotment and see that it is not 
exceeded ': 

(</) The treaty places no restriction whatever upon brinjrini: into the United 
States the power generated on the Canadian side of the Niagara Kiver; is it 
desirable to place any such restrictions, or is it wise to make any such restric- 
tions, or is it better to allow the people of the United States to have the use of 
all the Niagara i)Owei- that can be brought into the United States? 

I venture to suggest, in response to the courteous invitation of youi' chairman, 
that I be present and address tiie committee as follows: 

Legisl.ttiou is necessary. 

The (liversions of water on the American side .should be not less than the 
amount named in the treaty. The allotment should be made by the Secretary 
of War after hearings and with the consent of the State of New York and the 
connnissiouers on the part of the United States in the international joint com- 
mission pro\ided for by the treaty. 

All restrictions on the transmission of power from Canada to the United 
States should be removed. 

These are the provisions of the bill (H. K. 7094) introduced by Mr. Sinnuous. 
of the Niagara Falls district and now before you. They are identical with the 
provisions of a hill ( S. 1940) introduced by Senator Root and now pending in 
the Senate. 

The provisions of the bill (H. R. 6746) introduced by Mr. Smith, of the 
Buffalo district, difler in two respects: 

(1) As to diversion, the Secretary of War is to issue the permit, but in one 
block to the State of New York, by whom it is to be allotted to the individuals 
or corporations who are to use it. This difference is a matter of form rather 
than substance, but I should think that the method named in Mr. Simmoms's 
bill will prove a better working ])rogram than that named by Mr. Smith. The 
ultimate effect is the same. 

(2) As to transmission of power from Canada into the United States. Mr. 
Sinmmns's bill, following the provisions of the treaty, is silent, and as the 
Burton resolution will expire with the enactment of the legislation you now have 
in contemplation, and as nowhere else except in the Burton act is there any 
restriction on bringing power from Canada into the United States, it follows 
that if yon adopt Mr. Sinnnous's bill, all restrictions on bringing power from 
Canada into the United Stales (so far as T'nited States laws are concerned) 
will di sap] tear. 

On the other hand. Mr. Smith's bill contains elaborate provisions the pur])ose 
of which was to insure that the consumer in the United States should iiay no 
higher j)rice for jMiwei- than is iiaid b.y the i-onsumer in ("ana«!a under like condi- 
tions and at equal distances from the Falls. I think that .Mr. Smith's bill was 
drafted under a niisapiuehension as to the fact.s. I do iu)t believe that lit' or 
any member of this committee intends that several millions of d(»llars of capital 
invested in g<)od faith by America)i citizens shall be deprived of any return or 
lirofit whatsoever. Yet such would be the effect of Mr. Smith's bill if adopted. 
What has happened in the Province of Ontarit) is tliis: The Province has 
create<l a government body entitled " (he hy^lroelectric power connnission." with 
very extensive iiowns for the purpose of generating or buying and transmitting 
N'iagara jiower to vaiMous nnuiiiM|;alil ies in the Province, and the essence of the 
law is that there shall ))e no i)rolil whatsoever to the connnission. When the 
law was i)assed the conmiission considered the construction of its own power 
plants in which to generate power, but before taking any active steps in that 
direction it aiiplied to the diff'enMit power comp.-inics for prices, and after long 
negotiations it did make a contract with the Ontario Power Co. for such 
amounts of power, not less than S.OOO nor more than 1(X).tX»0 horsepower, as it 
miglit re(piire during a period of ^M^ years. The price named was, in the 
opinion of the commission, not much in excess of what it would cost them to 
generate their own ]>ower. and therefore they decided not to build their own 



PRESERVATION OF NIAGARA FALLS. 103 

power i)laiit, but to make the contract above referred to. Ilaviu;; made this 
contract, the conunisslon proceeded to borrow, on the credit of the Province, 
nearly $4,000,000, and it sold its 4 per cent bonds at 1024. It entered into 
conU-acts with nearly 30 munici])alities for varyinji; amounts of iK)\ver. and it 
is stipulated in each contract that the price whic-li the municipality is to pay 
for the power is the sum total of the price paid by the commission to the 
Ontario Power Co., jilus actual exjienses of oiieratinj; the transmission lines, 
interest on the bonds, sinlvin,u; fund, maintenance, and dei»reciation. but without 
any profit whatsoever to the conuinssiou. The $4.(KX),0(iO i-ealized from the 
sale of the bonds was use<T to build stations an<l transmission lines to all the 
towns and villages between Niagara Falls and Toi-onto on the east and Loudon 
and St. Thomas on the west. 

You will thus see that the Ontario Power C'o. sells to the Province of Ontario 
which is its landlord, a certain amount of power delivered at the wall of the 
powerhouse at the generator voltage: the same comi)auy sells to the Niagara. 
Lockport & Ont:irio Power Co. another amount of jtower at a distance of 6 miles 
from the powerhouse wall' and at a voltage of five times the generator voltage. 
The Niagara. Ijockiioit cc Ontario Power Co. buys this power at the international 
boundary line and distributes it through about 4r>0 miles of transnu.ssion lines 
in western New York, covering the territory between Syracuse and Oswego on 
the east and Dunkirk on the west, as above stated. In the purchase of land 
and the construction of stations and transmission lines, the Niagara. Lockport 
& Ontario Power Co. has invested nearly $9.O0O,0fM). Its bonds bear interest at 
5 per cent and they had to be sold at a considerable discount. 

I trust that I have made it clear that the conditions on the two sides of the 
Niagara River are entirely unlike. On the one side is a Government commis- 
sion owning the transmission facilities, which have been constructed on the 
credit of the Province of Ontario and on a basis of less than 4 per cent, and in 
pursuance of a law the fundamental principle of which is that there shall be 
no profit. On the American side is a commercial corporation covering nearly 
twice as much territory, whose ti'ansmission lines have been constructed with 
money co.sting practicilly G per cent. 1 am sure that this committee will not 
deny to the owners of the Niagara, Lockpoi-t & Ontario Power Co. a reasonable 
return upon their investment. The company has as yet paid no dividends on its 
stock. The interest on its bonds has been promptly iiaid. but the large eiiuity 
in the property over and above the proceeds of the bonds has yet had no return 
whatsoever. This. I think, might be considered as one ]troof that its charges 
were not exorbitant. Another proof, perhaiis equally convincing, is that while 
this New York corporation operates the trolleys on nearly .jOO miles of railroad 
and supplies the current for lighting and other miscellaneous public uses in 
many cities throughout western New York, no comjjlaint has ever been made 
that its charges were not .iust. fair, and reasonable. 

Now, I venture to suggest for the consideration of your committee that it is 
no part of the business of the T'nited States to regulate prices on electricity 
within the different States. That is a sub.1et:-t wliich belongs to the States 
themselves, and the St.ite of New York in particular has fully met the case 
by apiirojiriate legislation. The first and most important act of (iov. Hughes's 
administration when he became governor of New Y'ork in January. 1907. was 
the creation of two public-service conmussions. one for the city <tf New York 
(which coidains about one-half of the jioi»ulatiou of the State) and the other 
for the rest of the State. The law is known as the iiublic-service commissions 
law. and yon will find it ir. the volume of New Y'ork Statutes for li)(»7. I have 
brought and now submit for the information of the committee a copy of the 
law in iiami)hlet form. You will find by referring to sections 71 to 75, i)ages 
73 to 7(>. that the jiublic-service conmiissions have full and complete power to 
regulate, fix. and establish the i)rices at which eleeti"icity sh.-ill be sold within 
the limits of The State of New York. If any municipality or any reasonable 
number of citizens are dissatisfied with the ju-ice at which electricity is 
sold, they can comjilain to the iiublic-service ccnnndssion, and it is then manda- 
tory upon the comnussion to hear such complaint, to make a finding of fact, 
and if the finding be that the prices are unreasonable, then they are to \i\ a 
reasonable iirice. and the corporation which does not comply with their order 
is subject to heavy penalties. Ami>le provision is given in the law to enable 
the conunission to carry its orders into effect. 

The ;iublic-si'rvi((> comnnssiou of the .second district. State of New Yoi-k, 
has complete Jurisdiction at every point in the State wliere Niagara power 
is at present being used or to which it cm be transmitted. This l.sw has been 



104 PRESERVATION OF NIAGARA FALLS. 

in operatinit now for nearly tivp yenrs. It has j;ivcn ^Mitirf satisfaction, not 
only to the consumers of power and li^lit. l»nt. so far as the second district at 
least is concerned, to all the coniorations whicli are under the jurisdiction of 
the coiuniissiou. 

In short, then, the State of New York has provided a tribunal with anijile 
jurisdiction over the matter referred to in the provisions of Mr. Smith's bill. 
This tribunal is fully established. It is in operation. It has the confidence of 
the community of all clas.ses, and incidentally, I may say it is now considerinsr 
a complaint from the city of Buffalo that the prices at which electricity is sold 
in that city are unreasonable. No other complaint has been lodged with thorn 
from any other conmiunity which uses Niagara power. If such complaint 
should be lodged, they would immediately proceed, as they are required to do 
by the law. to hear it and to provide the remetly if on the hearing the com- 
plaint is sustained. 

It will thus be seen that the State of New York has already enacted complete 
legislation for controlling the prices of electricity. It has established proper 
tribunals, clothed them with jjower to enforce their decrees, and established 
an administrative system which is now in fiill working order with satisfactory 
results to all concerned. 

Fr.vxcis \'. Ckkene. 

Januaky is. 1912. 

STATEMENT OF EDWARD T. WILLIAMS. 

Mr. AViLLLv.ALs. 1 am from Niagara Prills. I represent the city of 
Niagara Fal].<. I am here simply to say upon the authority of the 
mayor of Niagara Falls that we living at Niagara P'alls and along 
the Niagara River regard ourselves as the most jealous guardians of 
the scenic beaiitj^ of this great cataract and that, having seen this 
power development from its inception, I am of the opinion that 
there has been no appreciable effect upon the flow of the river or upon 
the beauty of the falls. The attitude of the city of Niagara Falls is 
that it believes tiiat water can be diverted up to the' limits proposed 
or incorporated in the treaty without having an}* appreciable effect 
upon the flow of the river or upon the beauty of the falls. 

Mr. Clhairman. that is practically all T have to say. 

The CiLvimLVN. I would like to ask you a couple of questions. The 
people of Niagara Falls, as I understand it, have no objection to the 
Government giving this additional 4.400 feet? 

]Mr. ^^'ILLIA3^s. That is their position, as I understand it. 

The Chaholvx. And they would like to have the restriction re- 
garding the importation from Canada removed? 

^Ir. WiLLLv.Ms. Yes, sir. 

The Chairman, You doubtless have looked over holh bills before 
this committee. Which bill do you prefer? 

]Mr. ^A'iLMA.>Ls. Why, I have not reached any conclusion in the 
matter. I am simply here to say on behalf of that city that we desire 
the treaty to be fulfilled. 

Mr. Lkoark. One of your principal duties is to bring conventions 
to Niagara Falls to see the place? 

Mr. Williams. No, sir: no, sir; to encourage industry. 

Mr. Cooper. Tt is a matter of industrial and commercial develop- 
ment, is it ^ 

]Mr. Williams, Yes, sir. 

The ClIAIR.^rAN. There is more or less typhoid fever at Niagara 
Falls, is there not? 

Mr. Williams. There has been some. 



PRESERVATION OP NIAGARA FALLS. 105 

The CnAiR.-\[AN. And that is on account of the pollution of the 
waters? 

Mr. Williams. Yes, sir. 

Tlie Chairman. How, in your judgment, could that best be 
stopped? 

Mr. WiLLiA^is. I would say that the city has now installed a new 
water works and filtration plant which has had some good effect and 
will have more. 

The CiiAiR:\rAN. Do you think it would be a good idea for Con- 
gress to confer upon the National Waterways Commission the right 
to do everything in its power to stop the pollution of the waters be- 
tween Canada and tlie Ignited States? 

Mr. Willta:\is. I am in favor of stopping not only the pollution of 
the waters between Canada and the United States, but also the waters 
of Lake Erie. 

The Chairman. And that is very important? 

Mr. Williams. Yes, sir. 

The Chairman. If you have any views upon that subject. Ave would 
like to have you give tliem to the committee. 

Mr. WiLLiA.MS. I think — I have been here before to confer with the 
Sni'geon General of the Arm}' 

Mr. Cooper. For what purpose ? 

Mr. WiLLiAJis. For the stoppage of the pollution of the waters. 

The Chairman. And the consequence is that in Erie. Pa., foi" in- 
stance, the people have epidemics of typhoid? 

Mr. Williams. Yes, sir; we think that is an uncivilized way to dis- 
pose of scAA age. 

Air. Cooper. Berlin derives large revenue from its sewage system. 

Mr. Williams. Yes. sir. 

STATEMENT OF MR. MORRIS COHN. 

Mr. CoHN. I represent the Hydraulic Power Co., of Niagara P'alls, 
as counsel. That compaii}'^ is the owner of the Hydraulic Canal, 
which was constructed in al)out the year 18()3, and has for nearly 60 
years — this company and its predecessors — for nearly 50 years it has 
been conducting power works under a claim of riparian rights with- 
out criticism, and the State of New York, claiming as a riparian 
owner, made some objection to the use of water without its permit, 
and, as it has been stated, gave by grant to the Hydraulic Power Co. 
the right to take such water as would be necessary for the canal. 

jNIr. Cooper. You have not been generating electric power all the 
time during those 50 years ? 

Mr. CoHN. No, sir."^ 

Mr. Cooper. What was it before that ? 

]\Ir. CoHN. Just mill rights — hydraulic power and a mill race. 
This company is the oldest company along the Niagara River. It 
has the greatest equities and interests in this legislation, and it has 
the strongest legal rights. Therefore, I think it is quite proper that 
it shall have the least to say. 

In 1902 the National Waterways Commission was authorized to in- 
vestigate the subject of Niagara River power development. In 1906, 
as the forerunner of the Burton Act, the National Waterways Com- 
mission made a report in which it recommended that the Secretary of 



106 PKE8ERVATI0N OF NIAGARA FALLS. 

War be authorized to grant permits for the diversion of 28,500 cubic 
feet of water per second and no more from the waters naturally tribu- 
tary to Niagara Falls, 10,000 cubic feet for the Chicago Drainage 
Canal, etc. I^ was recommended in that report that 18,500 cubic feet 
per second be allowed at Xiagarji Falls, as that could be diverted 
without injuring the scenic beauty of the Falls. It also stated that 
36^000 cubic feet could be diverted upon the Canadian side. The 
matter coming before the Rivers and Harbors Committee of this 
House, they made a report in which they recommended that instead 
of this 18.500 feet, 15,000 feet be so diverted. The result of it was 
that the Niagara company got 8,600 feet, and that this company, in- 
stead of getting 9,500 feet, only received 0,000. In a report which 
accompanied the bill it was stated that the final settlement of the 
matter uuist rest until the result of diplomatic negotiations be em- 
bodied in a treaty: that it was, however, necessary that legislation bo 
enacted to furnish the basis for diplomatic action. That was all that 
the Burton Act was intended to cover— to hold the matter in status 
quo until the respective countries could get together and confer upon 
a treaty. Section 4 of the Burton Act says: 

That the President of the t'liiUnl States is respectfiilly requesteit to open 
negotiations with the (ioveninient of (Jreat Britain for the purpose of effectually 
providing, l>y suitable treaty witli said (Jovernnient, for such regulation and 
control of the waters of Niagara Kiver and its triltutaries as will preserve the 
scenic grandeur of Niagara Falls and of rapids in said river. 

Negotiations have ripened into a treaty, and the Burton law still 
remains, and thus we think it is unfair that this act shoidd remain on 
the statute book after the purpose it was intended to serve has been 
accomplished. The act provided particularly that it should be in 
effect for the term of three years, and then it was continued for two 
years more. So that it was never the purpose of the law that we 
should be forever deprived of the right to apply for additonal water. 
The temporary reason for the act having gone b3% the Congress 
shoidd discontinue it. 

Mr. Cooper. Hoav much water did your companj^ divert 20 or 25 
years ago ? 

Mr. CoiTN. Oh, a very much less amount. It was not until after 
the electrical development that the diversions became large. I don't 
know ; I won't say exactly how much. 

Mr. Cooper. Before the State of New York took action, were you 
at any time using as much as you are using now? 

Mr. CoHN. Oh, no ! The growth of electrical development has in- 
creased the use of water. 

iSIr. Cooper. How far above the precipice do you divert the water? 

]Mr. CoiiN. Port Day, throe-quarters or one mile above the Falls. 
Now. we say we submit the whole matter to Congress. Passing the 
question of whether we have the legal right, which has been argued 
here so forcibly — and. I think, well — because we have for years di- 
verted water as riparian owners, and that was a corjioreal heredita- 
ment which was like a rock or a tree, we say that Congress should 
give to some tribunal the right to grant permits to the amount of 
20,000 cubic feet per second. 

Mr. Cooper. What competition is your company getting on the 
American side with any other company? 



PRESERVATION OF NIAGARA FALLS. 107 

Mr. CoHN. We are in direct competition with the Niagara Falls 
Power Co. We have attracted other companies thei'e. 

Mr. Cooper. Both use the water? 

Mr. CoHN. Yes, sir. 

Mr. Cooper. Is there any competition as to the vohnne of business 
or as to the rate charged ? 

Mr. CoHN. I think both. I think the people who come to Niagara 
Falls go first to one company and then to the other. 

Mr. Cooper. Is there any identity on the board of directors? 

Mr. CoiiN. No; not the slightest. 

Mr. Cooper. There is a competition ? 

Mr. CoHN. Well, competition as competition goes in the matter. 

Mr. Cooper. You would not call it real, fierce, cutthroat competi- 
tion? [Laughter.] 

Mr. CoHN. I don't think there is anything like that. I think it 
would be absurd when they make contracts for 20 or 25 years. People 
might go into cutthroat competition for 20 days, though. 

Mr. Cooper. Have these companies been prosperous financially? 

Mr. CoHX. Very. 

Mr. Cooper. So that you don't need the additional water to enable 
you to succeed financially? 

Mr. CoHX. No, sir: I don't say that. I say we can not do without 
it; that the people need it. 

]\Ir. Cooper. And at the same time vou sav it would not hurt the 
Falls? 

Mr. CoHN. The 4,400 feet, let me explain, comes from the same 
place that an}- diversions would come from on the Canadian side, and 
it is perfectly absurd to allow the Canadians to develop 36.000 feet 
and say that the Americans shall not take their 20,000 feet. 

A Member. That is the point I am glad you brought out. 

Mr. CoHX. It all practically comes from the Canadian side. There 
is no report of any engineer that says that any diversion on the 
Canadian side affects the xVmerican side. Now, the apex of the Falls 
is only 18 feet deep. Who could look at it and tell whether it was 
10 feet deep or 8 feet deep ? 

Mr. Cooper. There is a black rock 

Mr. CoHX. That has always been there. 

Mr. Cooper. The point is, how far can you go; the only question is, 
how far can you go? 

Mr. CoHX. That is the point; the people of Niagara Falls are just 
as anxious to preserve the scenic beauty of the Falls as anybody else. 
There are mam^ people who are depending on the traffic caused by the 
tourists coming. I have in mind the Gorge Railroad. There is no 
one here, who understands the situation, who says the Falls are going 
to be ruined if this extra 4,400 feet is permitted to be diverted. 

The Chairman. Yet you do appreciate the caution ? 

Mr. CoHX. I think that is very proper. This matter has been be- 
fore Congress for a number of years, and I think they have been very 
cautious. 

Mr. Difexderfer. To whom do you furnish this power? Do you 
sell any of it directly to the consumer in the city of Buffalo ? 

Mr. CoHx. No, sir. We do not transmit any of it outside of Ni- 
agara Falls. It is only for the immediate market. 



108 PRESERVATION OF NIAGARA FALLS. 

Mr. DiFENDEiiFEK. You (lo iiot fuiTiish any power to any other trans- 
mitting company ? 

Mr. CoHN. Not in the city of IJutl'ah); just in (!ie city of Niagjwa 
Falls. We just sell it to distributing companies in that city. 

Mr. Legare. I see here article 5 of the treaty goes on to say : 

It is the (Ifsiiv of bctli jnu-tics to actdiiiplish lliis object with tlio lejist possible 
injury to iiivestin«-iiis wliieli have iilrendy l)eeii made in the constnictioii of 
power iilniits on the Auieritan side of tlie v'lvvv :ind on tlie CaiiadiMn side of 
the river and in the I'rovinoe of Ontario. 

Have A'ou given any thought to that pixvi of the treaty — -as to an}^ 
legislation we may pass as to limitation of impoi'tation of power from 
Canada into tlie United States^ Do you catch my idea? 

Mr. CoHN. I do not. 

Mr. Garner. I understand that the law of Canada is to the effect 
that you can only import one-half of the power created over there, 
so that tliey have already made laws protecting their interests? 

Mr. CoiiN. Yes, sir. 

Mr. Legare. Yes: but suppose we should pass some law prohibit- 
ing that, would it not be in conflict with this treaty, which says: 

It is tlie desire of both iiartios to acr-'ininlish this objet-t without the least 
jiossible injury lei investments whic-li have already been made. etc. 

Mr. CoHN. Your contention is that if we continue this prohibition 
we are running contrary to the treaty? 

Mr. Legare. That seems so to me. 

Mr. CoiTN. You will excuse me from talking about prohibition. 
That is for the other felloAvs to talk about. I am not interested in 
the question of importation from Canada, because the more that is 
imported the more it comes into competition with us. I am not 
quite through. I just Avant to say that in Gen, Greene's satement 
here, on ])age 8, he gives the result on the Canadian side, and possibly 
the result of the development on the American side. On the Ameri- 
can side he gives the actual development and on the Canadian side he 
gives the authorized development ; that the Niagara Falls Power Co. 
and the Hj^draulic Power Co. developed 205,000 horsepower, but 
that statement is not just exactly as I understand the facts to be. 
In the State «tf New York there w^as planned the other da}' 

Gen. Greene. That was what I understood you to create. That 
was 120,000 to 130,000 horsepower. That is the impression I intended 
to convey. Possibly I have conveyed a wrong impression. That is 
what you have produced. 

Mr. CoiiN. You will find that any request that has been made by 
the Government officers or the scenic preservation committee has 
been prompth' and satisfactorily honored. 

Mr. Cooper. What is the plan of the establishments using j'^our 
power ? 

Mr. CoHN. Oh, we sell power to the William A. Rogers Co. and the 
Carter-Graham Co.. which makes check books, and the Electro- 
Metallurgical Co., Avhich makes batteries^oh, there are about 60 
companies. 

Mr. Cooper. How many of those companies are 24-hour companies ? 

IVfr. CoHN, Practically all of them. All the large users are 24-hour 
companies. If they can use the power 24 hours a day, that makes it 



PRESKRVATIOX OF XIAGAEA FALLS. 109 

more economical. Some of those plants conld nevci- have been estab- 
lished without the 24-honr plan. 

NoAV, as to this point about the peak of the load: The language 
of the treaty, which is in the Smith bill, is intended to cover between 
the hours of 6 and 7 in the evening — but Mr. P. P. Barton can speak 
better than I can on that. 

Mr. DiFEXDERFF.R. What is the minimum charge to the 24:-hour 
using plant ? 

jNIr. CoTTN. I don't know as I am fully acquainted with that, 
but I have drawn some contracts in late years. It varies according 
to the manner of the use. Take, for instance, our contract with 
the T'^^nited States Light & Heat Co. They take our charge to be 
certain of getting a lessened. rate, and if they take on the kilowatt- 
hour basis that is one rate. If they take it for 10 years, that is 
another rate; and if it is in horsepower quantities, that is another 
rate. 

Now, the Public Service Commission of the State of New York 
had a meeting the other day at Albany, in which it was decided that 
the electrical companies shall file rates. 

Mr. DiFEXDERFER. Could vou give us the minimum charge on a 
horsepower basis? 

Mr. CoHN. About $16. 

Mr. DiFENDERFER. Then there is a maximum rate? 

Mr. CoHX. I don't think we sell any higher than $17 or $18. Per- 
haps I had better be entireh^ frank and say that there is one com- 
pany that had a substantially lower rate, but now the commission is 
going to compel us to file rates the same as a railroad company. 

Mr. Garxer. The power companies, then, are entirely satisfied 
with the commission and with its workings up to date? 

Mr. CoHx. They have got to be. [Laughter.] 

Mr. DiFEXDERFER, And you are entirely satisfied with the rates 
laid down? 

Mr. CoHX. Well, we are not kicking about it. Those who are 
in favor of bankrupt corporations have a different view from what 
we have. 

The Chairmax". Mr. Colin, if you have any data that you desire 
to submit as a part of your remarks, you may submit it. 

Mr, Coiix. Not at all. We want some legislation, and that is all. 

The Chairmax. In regard to the disposition of the 4,400 feet of 
additional water, do you think the right to dispose of it should be 
lodged in the Secretary of War, or in the Public Service Commission 
of the State of New York? 

INfr. CoHx. I think that we ought to have it. [Laughter.] 

The Chairmax, Yes; but who should dispose of it? 

Mr. CoHX. I haven't any choice or any views. We think we ought 
to have it anyway. 

A Member. You would not ask Congress to legislate that you 
have it? 

Mr. CoHX. I don't think that, I stated a 3'ear ago that we should 
have it. 

The Chairmax. But if you can not have it you are willing that 
somebody else should? 
2R.S05— 1 2 s 



110 PRESERVATION OF NIAGARA FALLS, 

Mr. CoHN. I say it Avoiild be very unfair on the part of Congress 
to k'gislato in defense or for the benefit of scenic beiinty. takinir 
awa}' from ns what is ours in common hiw. 

Mr. CDoper. Do you think a commission shouhl be created to 
establish rates? • 

Mr. Coiix. Well, we have one in Xew York. 

Mr. Cooper. .Do you think it is a good idea to sell lo a 20.000 
horsepower consumer at a less rate? 

Mr. CoiiN. Yes, sir. 

Mr. DiFEXDERFER. AVliv. he coidd manufacture his gas for less. 

Mr. Coiix. I don't think there is any competition in that business. 

Mr. DiFEXDERFER. Xot there. That's one of the reasons. That 
is exactly what was the trouble with railroad rebate-. | Laughter."] 
That the great big fellow drives the other fellow out of business at 
any time he wants to. 

Mr. Coiix. That certainly is rectified for the few by the public- 
service commission of the State of Xew York: but if a man comes 
tc us and says, "Here. I want to buy power." it has been a (piestion 
of individual bargaining. 

The CriAiR>F\x. Thanlv you. Mr. Cohn. AVe will now hear Mr. 
Morrison. 

STATEMENT OF MR. A. C. MORRISON. 

Mr. MoRRisox. I represent the Union Carbide Co., of Xiagara 
Falls. I am neither engineer nor lawyer, but my company is a user 
of the power at the Falls and has been a rapidly developing^ user of 
power there. I can not speak for the electric-furnace industry as 
a whole, but I think it is fair that I be allowed to bring before this 
conunittee a general picture of the electric-furnace industry, espe- 
cially as I believe that my company is the largest user of ])ower at 
X^iagara Falls, which is the center of electric-furnace development 
in this country. We have developed in the last few years very rap- 
idl}'', from a very small beginning to our present status. I think it 
is fair to state that our power requirements are increasing several 
thousand horsc^Dowcr pev annum. The problem of securing that addi- 
tional power is a grievous one. Water power seems to be more theo- 
retical than practical. Water power, located advantageously, as is 
the case at Xiagara Falls, where vast quantities of raw materials can 
be economically assembled and distribution of finished products easily 
accomplished, is an essential strategic advantage to the very heavy 
and important electric-furnace indu.stry — at Xiagara Falls especially, 
because of the opportunity which their superb development gives the 
American manufacturers to meet foreign competition and develop 
exports. 

The electric-furnace industry was born of the last verv few years, 
and it has grown from a crude beginning to a very powerful factor 
in the advance of American manufactures, and is essential in some 
lines to American commercial success. Its development is continu- 
ally increasing, and new uses for the products of the electric furnace 
are being discovered almost daily. My company's product has be- 
come a Aery widely distributed necessity — so wide, indeed, that there 
IS hardly a town in the country that does not use carbide of calcium. 
AAHien I state to you gentlemen that millions of peo])le besides those 



pni«i:riVATioN of Niagara fall.s. Ill 

near the Falls are being- benefited by the beneficent use of this water 
power; that 200,000 country homes, several thousand hotels, and over 
300 villages are illuminated by calcium carbide made at Niagara 
Falls ; and that it is really bringing the educational and economic in- 
fluence of a brilliant and beautiful illuminant into the farm home 
and country village, the dark depths of the mine, the buoys and bea- 
cons of our coast line, and the lights of onr engines and our auto- 
mobiles, you will understand that perhaps the benefit is not confined 
to the limited circle of 2,000,000 people who draw light or power 
directly from Niagara Falls. 

So. to sum up : This question of power has become extremely difii- 
oult. We have reached the limit of securing large units of power at 
Niagara Falls, and if a limitation is placed upon the waters of 
Niagara Falls which may be diverted we shall have to seek else- 
where, and the search for American poAver properly located to meet 
commercial conditions is a strenucms one. The most advantageous 
thing we can do is to establish a plant across the river, where we can 
keep our management, assembly, and distribution intact. I am au- 
thorized by my company to say that, provided the limitation fixed 
by the Burton law is not taken olT, or provided that Ave can not get 
power from Canada, we will be forced to become a Canadian insti- 
tution. 

Mr. Cooper. Is vour institution i-onnected with the carbide in- 
dustry of the "Soo*'? 

Mr. Morrison. Yes, sir. 

Mr. Cooper. Are you using all your resources? 

Mr. MoRRisox. Owing to the riparian-rights question, lake-level 
regulations, and the disputes oA'er it — the suits and a multitude of 
legal tangles which have held development there in check — instead of 
getting the 20,000 horsepoAver contracted for Ave haA'e been cut doAvn 
so that 7,500 horsepoAver is our full average from that otherAvise 
splendid source of poAver. The Avater has been and is still running 
to Avaste instead of building towns and feeding thousands of human 
beings. 

Mr. Cooper. How much poAver Avould you get if you had the full 
amount ? 

Mr. Morrison. Our contract calls for 20,000 horsepoAver, but avc 
could get 40,000 if it was developed, but AA-e haA'e never been able to 
get more than about 7,500. The ramifications of this electric-furnace 
industiy are enormous. We all knoAv some of the man}' varied uses 
of electricity, but there are greater developments coming. There is 
the use of electricity in the steel industry, neAV metals Avhich add 
to the Avearing power of rails and thus facilitate transportation, so 
that these industries are being born Avithin industries, and new uses 
are in process of being born, and many of them have already de- 
veloped into substantial and permanent entities. There is one aa'oii- 
derful thing, a child of the electric furnace, and that is that the 7ii- 
trate industry — that is, getting nitrate from the air and putting it 
into the form of fertilizers, Avliich in European countries is already 
very large; indeed, it has de\'eloped very rapidly in this country, 
so that in five years contracts abroad liaA^e aggregated 200,000 horse- 
poAver, and this vast amount of poAver is now being used for the bene- 
fit of agriculture, and thus the Avhole people. The Cliilean niters are 
limited. This country in its Avater poAver has the solution of the 



112 PRESERVATION OY NIAGARA FALLS. 

nitrate problem, the problem of preserving the fertility of our soil. 
We are told that we are importing more tlian ever. As soon as the 
soil becomes exliausted the nitrates become necessary, and it is prac- 
tically settled that the electrical industry must solve the nitrate ques- 
tion. This vast need must be met. Niagara Falls has a growth that 
is as much beyond European dreams as the Falls themselves surpass 
European imagination. 

Mr. DiFENDERFER. From whom do you get this power? 

Mr. Morrison. The Niagara Falls Power Co. 

Mr. DiFENDERFER. Are any of your stockholders interested in the 
Niagara Falls Power Co.? 

Mr. Morrison. I think not. I believe it is a correct statement to 
say that they are not connected with it in any Avay. 

Mr. DiFENDERFER. Would you be prepared to state what you pay 
for your power? 

Mr. Morrison. I would hesitate to do so. I assume that could be 
easily ascertained. Some of the power companies could tell you. 

Mr. Cooper. Mr. Morrison, this may be a little foreign to the 
matter before us, but what do you think of the water development in 
the great gorges of the West ? 

Mr. MoRRisox. It is true there is great theoretical possibility 
there, but I desire to refer back to my general statement that the 
utilization of water power is more theoretical than practical. Freight 
and water transportation and nearness to markets is sometimes — al- 
most alwavs, in fact — the necessaril}^ deciding factors in the ultimate 
question of the utilization of water power. For illustration : In Nor- 
way and Sweden — especialh' in Norway. Avhere much nitrate carbide 
and steel is manufactured — -the water power comes right down from 
the top of the mountains to the sea and the ships dock in deep water 
right there at the foot of the mountain, where the works are located. 
Water power is so cheap there that I believe I can state that rates 
are $8 to $10 per horsepower year as against the very much higher 
rates American power can be developed for. It requires a good loca- 
tion and xVmerican genius to exist against such amazing competition. 

Mr. Cooper. And you have been employing American labor all the 
time ? 

Mr. Morrison. Yes, sir. I wish to emphasize one thing, and that 
is this, that if the embargo against the importation of Canadian 
power is not lifted we will be obliged to use Canadian power in 
Canada, and thus, in part at least, become a Canadian institution em- 
ploying Canadian labor; so that we are decidedly in favor of re- 
moving that embargo as we are good Americans. 

The Chairman. Is there any reason why Congress should not re- 
fer this to some commission to fix the rates ? 

Mr. Morrison. Well, we have no objection whatever to any regu- 
lation of rates that is fair and equitable. We are buyers of power 
and users of power. 

The Chairman. The committee will now hear Mr. Millard F. 
Bowen, of Buffalo, N. Y. 



PRESERVATION OF NIAGARA FALLS. 113 

STATEMENT OF MILLARD F. BOWEN. 

Mr. BowEN. I am from Buffalo, N. Y. I represent the Erie (!i 
Ontario Sanitary Canal Co., a corporation of New York State. I 
Avoiild ask the consideration by the members of the committee of the 
course of the canal pictured on this map, which is taken from the 
Government sheets. I am the organizer and president of the com- 
pany that is to accomplish this work, 

Mr. Cooper. What company is it? 

Mr. BowEN. The Erie & Ontario Sanitary Canal Co., organized 
two years ago last fall. 

Mr. Garnek. For what purpose? 

Mr. BowEN. The purposes mentioned in the charter are very 
broad. 

Mr. Cooper. The general purpose. Can you state what the pur- 
pose of your company is without stating what is in the company 
charter ? 

Mr. BowEX. Not only to provide a canal for sanitation and navi- 
gation, but also that the water shall be used for power, the right of 
way for warehouses along the line of the canal, or any business pur- 
pose under the laws of New York, 

Mr. DiFENDERFER. What is your capital stock? 

Mr. BowEN. One hundred thousand dollars, unwatered. 

Mr. Cooper. You propose getting some of that water power that is 
now used by some outside consumers? 

Mr. BoAVEN. All of the water used under the treaty is what would 
be necessary to make this a commercial success. The 4,400 feet 
allowed for power under the treaty can be added to by a provision 
of the treaty that I will read, so that there can be no misappfeciation 
of the scope of this. 

Mr. Cooper. Would that abridge the vested rights of those riparian 
owners if you get the surplus? The statement was made this morn- 
ing that the companies already existing have the right of riparian 
owners. 

Mr. BowEN. As riparian owners they can take any amount op- 
posite their own holdings. We will turn backward all the streams 
that run into Niagara River, at or near Buffalo, and stop all of the 
floods; we shall make the waters of Niagara River as ]nTre as nature 
intended them to be. 

Mr. Cooper. IIow much is the capital to be? 

Mr. BowEN. Thirty million dollars, to be raised by sale of bonds. 

Mr. Garner. You mean to say, then, that your corporation gets 
permits from the Government and then sells its rights to somebody 
else? 

Mr. BowEN. Not at all. We will serve the public free with this 
canal for the purpose of sanitation, giving to all the people on the 
Niagara frontier free sewage disposal and free flood abatement, and 
also Ave Avill give Buffalo City a thousand feet of dockage, and a 
maximum kiloAvatt-hour rate Avhich Avill be on the same basis as the 
Ontario rate — 4^ cents per kiloAvatt-hour. 

Mr. Garner. A very laudable ambition indeed. But you don't pro- 
pose to do all of this with a capital of $100,000? 

Mr, BoAVEN, My dear sir, in Albany the other day a trolley com- 
pany agreed to issue bonds for the full extent of its construction. 
The income proved by that trolley company was so sufficient to pay 



114 J'KKSKHVATIUN OF >'IAGAU.V lAiJ.S 

for tlie chai'<>es that the public service commission gave theiu the 
right to go ahead and issue the bonds for the full amount. Our 
finances are to be obtained for this enterprise from the sale of lx)nds. 
The stock necessai'v to be sold is only necessaiy for the })roinotion of 
the business. 

Mr. Cooper. Is all this stock paid for? 

Mr. BowEN. It is not; it is only being sold as necessity arises. 

Mr. Cooper. But you anticipate it will take all that amount? 

Mr. BowEX. Yes. sir; 170.000 hoursepower of electricity can be 
developed from the 312 feet of fall that Ave obtain. The same amount 
that we ask for, if used b}^ another company, would not come within 
a very suiall percentage of Avhat we can generate. By reason of the 
extraordinary conditions of the frontier Ave can use this water three 
times oA'er, and obtain 28 horsepower from eveiy cubic foot of water. 

Mr. Garner. In jour navigation feature Avouldn't yon be in com- 
petition Avith Montreal? 

]Mr. BoAVEx. No: because the United States has passed on five dif- 
ferent studies for a ship canal between Lakes Erie and Ontario and 
has turned them doAvn on the ground that it Avould help Montreal 
more than XeAv York. Therefore navigation in this canal Avould 
stop at the barge canal, and would take the barge traffic and Avould 
send those barges through to Ncav York without going doAvn the 
Niagara River, and vice A^ersa, save passing up the riA^er fr(mi 
Tonawanda, Avhere the current is SAvift. No proAnsion for an inner 
canal has been made by the State, and the river has to be used for 
that purpose. 

Mr. T.1E0ARE. How much Avater do you propose to use? 

Mr. BoAVEX. Six thousand. In order to make it a success it is 
necessary to take 1,000 feet per second in addition to the 4.400 feet, 
that being especialh^ for sanitation and navigation, which is less 
than the percentage that has been allowed for dilution at Chicago. 
This study has been a study for years Avith me, and I have taken 
up all the data I have obtained since I organized the Manufacturers' 
Club .of Buffalo. Many manufacturers came to Buffalo, and Avere 
turned aAvay because there was not enough poAver. and because the 
l)rices Avere excessive, and because factory sites with both rail and 
Avater connections are scarce and expensive. 

Mr. DiFEXDERFER. How long is this canal? 

Mr. BoAVEx. Forty-two miles. 

Mr. DiFEXDERFER. Then you would discharge into Lake Ontario? 

Mr. BoAVEx. After the scAvage is taken aAvay from the Avater. 

Mr. DiFEXDERFER. AVliat is your proposition for the disposition 
of the scAvage? 

Mr. BoAVEX. That is similar to the proposition of the drainage 
canal of Chicago. The drainage canal there has been in operation 
for 12 years. 

Mr. DiFEXDERFER. You would tlieu drain the pure Avater into 
Lake Ontario? 

Mr. BoAVEX. Without any appreciable contamination. The effect 
of the expei'ience of the Chicago Drainage Canal has been that in 
all of their years of o])eration the contamination is never appreci- 
able—that all of the seAvage matter disappears in the form of gas. 
The chemists Avho have examined the Avator there find that at Lock- 
port, Avhich is 32 miles from Lake Michigan, half of the scAvage mat- 



PUESKRVATION OF NIAGARA FALLS, 115 

tei' has disappeiuvd, and no trace remains 48 miles from Lake 
^Michigan. 

In our canal, with a oreater dilution of water, and with a less 
amount of sewage to drain into it, the flow of 42 miles will natu- 
rally, for man}' years to come, purify the water coming into it. Be- 
tween Lockport and Lake Ontario there will be two large reservoirs 
for the dams below Lockport. If the State of Xew York finds that 
there is an}' contamination we will be compelled by the Health De- 
partment of the United States and the State board of health to treat 
the Avater in such a way as to satisfy them that there is no contami- 
nation. 

Ml'. Legaim:. Tender what clause of the treaty? 

Mr. BowEN. In article 4 of the treaty, and in article 5, the last 
clause. 

The Chairman. >Mr. Bowen. in that connection, do you think it 
w^ould be advisable to give the International Boundary Commission 
authority to prevent the pollution of the waters? 

Mr. BowKN. They say they will have to get that authority. They 
don't want to take up the authority even in such a matter as this 
until you give them the points upon which to pass. In other words, 
they will be in the attitude of agreeing to the proposition that will 
be sent up by you or any department of the Cxovernment. 

Xow, in article 8 you Avill find a very strong argument in favor 
of this plan. The third clause begins this way: 

The foUowiiij: oitk'r of iir('ce»l(M)ce shall ho cbserved .iinoug the various nscs 
enmiierated hercinafrov for liiese waters, and no use shall be permitted which 
tends materially to confllet with or rtstiaiu any other use whi^-h is iciven pref- 
t'reuee o\er it in this order (;f preference: 

(1) life for d(>niestic and sanitary purposes; 

(2) Uses for navigation, i.ncluding the service of canals for the purjH)ses of 
navigation; 

(3) T'ses for power and for iirigation purpose?. 

(leorge Clinton told me that he was told t(v make this treaty broad 
and comprehensiw and to take aAvay technicalities, so that there 
slionld be the broadest interi)retation of the treaty for both sides of 
the boundary. So far they have not ])assed upon the rules, but the 
International Joint Commission, established under the treaty, are 
still uncertain of their powers, but I think when they get into the 
matter their powers Avill develop, 

XoA\ , in oi'der that I may have something to talk on, from a view- 
})oint of the bills that are before this committee. I have certain sug- 
gestions to make in regard to the wording of the preamble of both 
bills. First, in the bill (H. R. 7()94) introduced by Mr, Simmons, 
why not strike out "" fifth article of the " and leave it, " to give effect 
to the treaty."' and not confine it to a simple interpretation of one 
article? That article is limited. 

Now, in line 8 of the Simmons bill I would insert, after the word 
'" from." the words " Lake Krie in Erie County, Xew York, or,'' 

It was asked me by Chairman TaAvney the other day "whether this 
water talcer, from the head of the river could be construed as water 
taken from the river under this treaty, I interpreted it this way, 
Right at the head of the river there enter into the river an average 
of '2"20,0()0 cubic feet ])er second. If we take part of that away, it is 
taking water from Xiagara River, although technically it might be 
at the head of the rivei". Xow. from the sanitary point of view, 



lib PRESEEVATIOX OF NIAGARA FALLS. 

right there, half of the G.OOO feet ought not to go into Kiagara River 
or Lake Erie. A year ago tlie marine hospital sent Dr. McLaughlin 
10 make an examination. Dr. McLaughlin has been called before 
your connnittce, and he may explain his report. It says that 160,- 
000,000 gallons of water a day flow back into the river, polluted, from 
ButTalo alone. 

The CiiAiE>[Ais. I want to say that Dr. McLaughlin was here, but 
he could not wait, so he will come before the committee next Tuesday. 

Mr. BowEN. Let me point out some of the principal points, then, 
and he Avill go into the details. That 160,000,000 feet ought never to 
go back into the river polluted. That does not include stream waters 
rhat are jjolluted, so that polluted stream waters, together with other 
polluted waters that flow back to Niagara River can be said to be 
more than 3,000 cubic feet per second. 

The Chaikma>,-. To give this authority to the Liternational Bound- 
ary Commission we Avould have to put in a new bill. 

Mr. BowEN. I think that they would accept your putting into this 
bill '" the use of 1.600 feet for sanitary purposes." That is the pro- 
vision of article 4. The commission sa}' that it only needs some 
action on the part of Congress. 

The CiiAiiiJiAx. Then you desire to have that in the pending bill? 

Mr. BowEX. Yes, sir: so that the sanitary feature of this bill can 
be passed upon by the international commission. Xow, then, all that 
we are asking for, practically, is 3,000 cubic feet to dilute the sewage 
of the frontier, in addition to the 3,000 cubic feet that ought never 
to enter the lake and river in a polluted condition. 

The Chairman. How far would that extend west? You say that 
it Avould be suflicient to ])revent the pollution of the waters between 
Canada and the United States? 

Mr. BowEN. Yes, sir. The east end of Lake Erie and Niagara 
River. This report sh(!ws that the sewage of Cleveland. Erie, and 
even of Dunkirk, is taken care of in the waters of Lake Erie, so that 
the dangers are very remote at Buffalo, as Dr. McLaughlin says. 
Therefore, taking all the streams south of Lackawanna, and even 
Hamburg, turning back all the streams at and near Buffalo into this 
canal is very comprehensive. 

I have given instructions to the engineers that they shall construct 
the sanitary canal and nu\ke it comprehensive (as Jim Hill said), so 
comprehensive that engineers aO years hence Avill not be able to 
greatly improve it. 

Mr. Legare. Mr. Bowen, it seems to me you are wrong in your 
proposition to use more than is allowed in the treaty. For instance, 
at the foot of clause 5 you are unquestionably given the right to use 
this water for use of canals and domestic uses, or for the purposes of 
navigation. Now, under that vou could use vour 1,600 in addition 
to the 56,000. 

Mr. BoAVEN. "What we ask for is l.-lOO cubic feet per second for 
power and 1,()00 cubic feet per second additional, under the last clause 
of Article V of the treaty for sanitation and navigation. 

Mr. Lagare. That is why I don't think your scheme is practical. 
Under that clause vou have the right to use that in addition to 
56,000, but you go further and say you want to use it for water-power 
purposes. You say that your scheme also includes power purposes. 
Now, arti(?le 8, that you niejilioned here, seems to me to confine itself 



PKESEKVATION OF NIAGARA FALLS. 117 

clearly to the 50,000 feet mentioned in the treaty. It says " these 
waters " only. It says " these waters," meaning these waters that are 
mentioned back here. 

Mr. BoAVEN. If you take that viewpoint, then Ave are entitled to 
the diversion we ask for, on the grounds that we use it for conserva- 
tion of both health and power. The Government is pledged to stop 
pollution of international Avaters. 

Mr. Legare. But you are asking for 6,000. 

Mr. BoAVEX. We are asking for the Avliole diA'ersion for both con- 
servation of" health and poAver. 

Mr. Garner. The only difference betAveen Mr. Legare and Mr. 
r>0Aven seems to be the difference betAveen 6,000 feet and the -1:,400 
feet. 

Mr. BoAVEN. Yes, sir. The Hydraulic Co., Avith 6,500 cubic feet, 
and the Niagara Falls Power Co., Avith 8,600 cubic feet at the falls, 
are generating less poAver than we Avill generate Avith 6,000 feet. 

Mr. Garner. But could you utilize this — unless you had enough 
to make a business of it 

Mr. BoAVEN. We need the full 6,000 cubic feet to make a com- 
mercial success. Yes, sir. 

STATEMENT OF OSCAR E. FLEMING. 

Mr. Fleming. I am from Windsor, Ontario. I am a barrister at 
law, counsel for the Electrical Distributing Co. of Ontario. They 
contemplate getting from the Hydro-Electric Commission, of On- 
tario, electric power from Niagara Falls to furnish Detroit, and 
in that AAay Ave are interested. I might remark in the first place that 
a great deal of Avhat I had to say has been coA^ered by the previous 
speakers. But I think it might be interesting to outline to you the 
scheme of the Hydro-Electric Commission of Ontario. It is a 
(rovernment scheme originating Avith the municipalities to get for 
the people of Ontario electric power at cost. That is, the government 
luakes nothing on the scheme and the people get it at actual cost. 
NoAv, they have a contract Avith the Ontario company for 20,000 
liorsepoAver. At the present time they are using 20,000 hcrsepoAver, 
and they are serving as far north as Toronto. It is about 180 miles 
from "Niagara Falls to London and about 100 miles to Toronto. That 
is Avhat they thought at first, but as the art of the uses for generation 
and distribution have developed they have found that they can send 
the poAver profitably 250 or 300 miles. 

NoAv, the present nninicipalities in the scheuie uuuiber about 20, 
and the thing has Avorked out A'ery successfully. At our municipal 
elections on the 3d of January, 34 municipalities voted to buy poAver 
from the Hydro-Electric Commission AAith Avhich to supply their 
people. In our district, betAveen Londcm and Windsor, on the De- 
troit River. 17 have A'oted to come Avith us. The Hydro-Electric 
Commission has made its (igui-es. and the present consumption in 
that district Avould amount to five or six thousand horsepoAver. The 
cost of distribution in that district would be considerable, probably 
tAA'o million or tAvo aiul a half milliou, which, added to the cost of 
the power at Niagara Falls and London. Avould make the price too 
high to serve this territory. So some parties — the people of Windsor 
and the Detroiters^ — conceived the idea of taking from the commis- 
sion part of the surplus to deliA'cr in Detroit. It hel])S out the AA-hole 



118 PIIKSKHVATIOX OF ^'IAGAUA FALLS. 

scheme to cheapen power. It enables the people in 'the district in 
which I live to get it at $30. That jilan has been submitted to these 
numicipalities and they have no objection to Detroit getting this 
lienefit. As I understand it, there is an investment for distribution 
of .several million dollars, and the more power that goes along the 
line cheapens the power for the consumers. 

The contract Avas signed between our company and the commis- 
sioners, and at that time our company put up a guaranteed fund of 
$250,000. and we have all the rights that we require, so far as On- 
tario and the Dominion of Canada are concerned. The only bar to 
our getting to Detroit is the Burton Act. We had in mind that the 
Burton xVct was a temporary affair, to last until the treaty came into 
effect. Under that treaty we realized that we could do business — 
that is. if there was no limitation put upon the export of power by 
that commission. Xoav. the commissioners are ready to go on with 
their work, and we take from the Government at Windsor 25,000 
horsepower for Detroit use. 

Mr. CooPEK. Do the Canadian municipalities get it at cost? 

Mr. Fleming, Yes, sir. 

^Fr. CooPEK. Detroit would not get it at cost ( 

Mr. Fleming. Xo; because they charge us 10 per cent of our cost, 
because we are not interested locally. The Federal Power Co., of 
Detroit, is an organization associated Avith the Electrical Distrib- 
uting Co.. and we take the ])ower and distribute it. The people are 
the same in the two companies, and it has got to be organized that 
way so as to distribute it in the tAvo countries. They take the power 
thei-e and sell it to the people in Detroit. 

The Chairman. Hoav long is this contract for? 

Mr. Fleming. For the full term of the contract with the Ontario 
PoAver Co. It expires in 1080. 

The Chairman. Hoav long, in your oi)inion. do you think it would 
take to exhaust the poAver you are entitled to under the provisions of 
the treaty ? 

Mr. FLE:\nN(;. That is a difficult question. In taking this up AAdiat 
I Avant to say to the connnittee is this : It might get to a point Avliere 
we could get the poAver from Detroit. 

The Chairman. That is Avhy I asked you that questi(m. There is 
great industrial development in loAver Canada? 

Mr. Fleming. Yes. sir. 

The Chairman. And it is only a (juestion of a very short time 
Avhen the peo])le of Canada Avill use all the Avater they are entitled to? 

^fr. Fle:ming. T don't think there is any doubt about that. 

The CiTAHoiAN. Would it be a year or tAvo. or three years? 

Mr. Fi.EMiN(i. I Avouldn't like to venture an opinion, but it is 
going to be pretty near that. 

The CHAiR:>rAN. You are using now 

Mr. Garner. The Canadian side is using 11.000 and the American 
side is using 15,()00 cubic feet. 

Mr. DiFKNOERFER. A little over 13.000. ]\Ir. Garner. 

The Chairaian. You are using less than the American side? 

Mr. Fleming. Yes, sir; at the ])resent moment. Xoav. as T said, 
Ave have all our plans made, but subject to the right to get into 
Deti-oil. I Avas about lo say that in the ordinance the comi)any Avas 
to sell the power at 20 per cent loss. 



PRESKRVATION OF Jv^IAGARA FALLS. 119 

Mr. . What you want is the limitation taken off ^ 

Mr. Fleming. Yes, sir. 

Mr. Cooper. Why should Canada, if it can not use that which is 
there, be anxious to have the restriction taken off? 

Mr. Fleming. It helps out the scheme of giving the people in 
Detroit the cheap power; but we have other water power — the 
Niagara River and the Ottawa River — ^in the north country, so 
that we can well afford to give to Detroit that amount of power, and 
every man, woman, and child gets cheaper power. 

Mr. DiFENDERTER. There is no contract between the city of Detroit 
and the Hydro-Electric Commission, is there ? 

Mr. Fleming. Yes, sir; it is signed. 

Mr. Difenderfer. You put up a bonus of $250,000 in cash? 

Mr. Flejiing. Yes, sir; and that is subject only to the permit to 
get it across the river, and if it is not given we get our money back. 

Mr. Watrous. As I understand it, 110,000 horsepower is being 
used out of 160,000 authorized to be used ? 

Mr. Fleming. Under the Burton Act. 

Mr. Watrous. Then why can't you use twenty-five of the fifty 
thousand that is unused? 

Mr. Fleming. All of that is taken up by the Burton Act. 

Mr. Watrous. But not used? 

Mr. Garner. They have a permit from the War Department. 

Mr. Watrous. It is apparent that there is a permit for some 1,400 
feet which is not being used. 

Mr. Cooper. What is it held up for? 

Mr. Watrous. That is what I want to know. Just merely because 
the permit has been given, it is a very simple matter 

Mr. Cooper. Have you applied to the Secretary of War? 

Mr. Fleming. Yes, sir; and the permits have taken up all the 
water used. 

The Chairman. They use it at any time? 

Mr. Fleming. Yes, sir. 

Mr. Garner. The explanation has been made this afternoon that 
they were contemplating using all that power soon. 

Mr. Cooper. How long have they had those permits I 

Mr. Fleming. Since the Burton Act was passed. 

Mr. Garner. How^ long before we thought they were using it ? 

Mr. Fleming. I don't know anything about their internal arrange- 
ments. 

Mr. Levy. When were you first refused by the Secretary of War? 

Mr. Fleming. I think it was over a year ago. 

Mr. Levy. What reason was given for the denial ? 

Mr. Fleming. That the limit under the act was being taken up. 
They had no authority to grant anv more permits under the Burton 
Act. 

Mr. Levy. In these permits is there no limitation as to the time? 
Do thev give a permit to a company to sit down and hold that as 
long as it pleases? 

Mr. Fleming. I am not in a position to say. 

Gen. Greene. I have a copy of the permit here. The Secretary 
of War held two hearings, one in the summer of 1000. 

He granted permits so that we would not all go to jail, because 
the acts done on the ;)0th of June were illegal, and then he investi- 



120 PRESERVATION OF NIAGARA FALLS. 

gated and found out, what their plans were, and then held another 
hearing; then he issued permits for the quantities I stated this morn- 
ing — 50,000 to the Ontario company, 52,500 to the Niagara Falls com- 
pany, -JrCSOO to the electrical company, and the balance was reserved 
for the use of a railway in Canada. Xow, those jiermits are in force 
to-day. 

A Member. In August. 1907? 

Mr. Cooper. Can these corporations wait in their discretion to use 
that? 

Gen. Greene. There is no time limit in the permit, but the Burton 
law says that it can be revoked. 

Mr. Garner. "\A'Tiat company has failed to use 'the full i)ower? 

Gen. Greene. The P^lectrical Development Co. (Ltd.). of Ontario. 

Mr. Legare. They have not used any at all? 

Gen. Greene. "Well. I understand they have sold a part of what 
they are authorized to export to Mr. Barton's company. 

Mr. Garner. In other words, they have a permit for a certain 
amount of power and they sell it to somebody else at a profit? 

Gen. Greene. Yes, sir. 

Mr. Barton, Sold 10,000 to the distributing company and it was 
not used because the company needed its entire generating capacity 
to supply the Canadian customers. 

]\Ir. Garner. Now. that is the most interesting statement I have 
heard so far. If I understand it. the Secretary of War allows a 
permit to continue in existence that is not being used because all 
the power it can generate is being used in Canada. At the same 
time he allows the permit to stand and refuses your company the 
I'ight to bring power into Detroit for the benefit of the people of 
the United States? 

(iren. Greene. Here is the document, an order for permits. To 
the International Railwav Co.. 1.500; to the Ontario Power Co., 
00,000; to the Canadian Niagara Co., 52,500; and to the Electrical 
Development Co.. 46.000 horsepower. This is signed " William H. 
Taft. Secretary of War.'' 

Mr. Barton. That was the order for the i)ermits? 

Gen. Greene. The permits were simultaneous. 

Mr. Garner. Is there anyone here representing the Electrical De- 
velopment Co. ? 

Gen. Greene. I answered that question this morning. 

Mr. DiFEXDEREER. Did you not state this morning that the Mac- 
Kenzie-Mann interests were shipping no power into the United 
States? 

Gen. Greene. I said I did not know. Now, there w^as a public 
record; a contract with the Niagara Falls Co. 

Mr. Barton. No; that was with the distributing company, and that 
has terminated now. 

Mr. DiFENDERFER. So that they are entitled to ship 46.000 horse- 
poAver, and have not done so? 

Gen. Greene. I heard a rumor that they renewed it. But nobody 
has ever claimed that they ever shi]:)ped more than 10,000 horsepower. 

Mr. Garner. The fact remains still that we are entitled under the 
]5urton Act to 46.000 horsepower, and that we are not now getting. 
This permit has been in existence since 1907; other parties seeking 
to use this power have applied to the Secretary of War, and he 



PRESERVATION OF NIAGARA FALLS. 121 

has refused them permits. Possibly the Secretary of War can give 
us some information. 

Gen. Greene. Incidentally, I may say that in the year 1909 I ap- 
plied to the Secretary of War for additional power and was refused. 

The Chairman. If the Province of Ontario grants the license for 
the water on the Canadian side, why should not the State of New 
York grant the permit on the American side ? 

Gen. Greene. I see no reason why it should not. 

The Chairman. It seems to me that it would be a matter of greater 
convenience than the present way, through the Secretary of War. 

Gen. Greene. Eminent lawyers have given me the statement that 
when the United States has exhausted its power it is then with the 
State of New York to say who gets the power, and fix the limita- 
tions, 

Mr. Brown. I agree with Gen. Greene on the law proposition. 

Mr. Sharp. The concrete question before us is this : The Secretaiy 
of War has this authorit}^ conferred upon him by Congress and he 
has granted permits to parties, some of whom have availed them- 
selves of it and some of them have not. Then the Secretary of War 
ought to grant that permit to someone who shall use it. 

Mr. Garner, And if j^ou should turn that entirely over to the 
State of New York, Michigan might not be agreeable to that. 

Mr. Cooper. This is the language of clause 7 : 

The Secretary of War reserves the right to modify the form of this permit, 
to change the method or plan of measurement herein prescribed, or to substi- 
tute other modes of judgement, etc. 

Is that an absolutely unqualified right ? 

Gen. Greene. Section 5 of the Burton law reads this way : 

The provisions of this act shall remain in force for three years from and 
after date of its passage, at the expiration of which time all permits granted 
hereunder by the Secretary of War shall terminate, imless sooner revoked. 
and the Secretary of War is hereby authorized to revoke any or all permits 
granted by him by authority of this act, and nothing herein contained shall 
be held to confirm, establish, or confer anj' rights heretofore claimed or exer- 
cised in the diversian of water or transmission of power. 

And I apologize for breaking in again. 

Mr. Fleming. The reason for the passing of the Burton Act has 
already been presented to this committee. It was a temporary 
measure. The duties it was to perform have been performed and 
it should expire. We on our side of the river had reason to believe 
that the treaty would be the supreme law of the land, and we can 
not appreciate why Congress should trv to restrict us in the use of 
our 36.000 feet. 

The Chairman. I am in favor of the people of New York buying 
power wherever they can buy it the cheapest. 

Mr. Fleming. How would you like us to say : " You can't have 
this. We will impose a duty on every horsepower that goes out of 
Ontario"? That woidd not be just. That is like the Burton Act. 

Mr. Brown, Mr, Fleming, is it not true, from an engineer's and 
a lawyer's standpoint, that the final permanent use of this power, 
authorized to be created upon the Canadian side, is to be enjoyed by 
that country who first preempted it, and if America does not get the 
use of it Canada will, and the final use will be where it was pre- 
empted ? 



122 PRESFRVATTOX OF ^'IAG.\RA FALLS. 

Mr. Flkmixg. Ye«. sir. 

Mr. Brown. Then the question in this ease on the Canadian side 
depends upon whether the embargo is raised ? 

The Chairman. Mr. Brown has asked you a question and he de- 
sires an answer. 

Mv. S-MrrH of New York. I wanted to ask you what kind of a 
reguLntion there is in Canada outside of the regidation phiced on the 
power sokl by the l*rovincial (lovernment itself ? 

Mv. Fleming. There is none. Nothing but a commercial compe- 
tition, and of course the competition is giving place to the hydro- 
electric power, which is so cheap. 

Mr. Cooper. Do you think that if these restrictions were removed 
it would be advantageous for the United States? 

Mr. Ff.eming. Yes., sir. 

^Ir. Cooper. Well. why. as a Canadian, should you desire the 
United States to get that? You are having an eye on Windsor? 

Mr. Fleajinc;. Yes. sir; I am interested in AVindsor getting cheap 
poAver. It cheapens the rate of power all along the line from London 
to AVindsor. and that is where we get a large benefit. 

The Chairman. In other words, you are in favor of Detroit get- 
ling this pov.er, incidentally because Detroit is going to help you 
get this power for AA^indsor? 

Mr. Fleming. Yes. sir. 

^Ir. Richard B. AA'^atroi s. I am the secretary of the American 
Civic Association. I sym])athize with the difficulties of Detroit 
that wants some cheaj) light. If the obstacle which stands in your 
way is removed, aren't you satisfied that you get that 25,000 horse- 
powei- ? 

Mr. Fleming. Yes, sir; that is all I am asking for, but that is 
outside of the question of policy that I have discussed here, whether 
you should come in and restrict importation into the United States. 

The Chairman. Now, is there any gentleman from BujQfalo or 
Niagara Falls or the State of New York who desires to be heard 
briefly, and who wants to leave to-night? ^Ir. Bowen, how long 
do you think it Avill take to conclude your argimient? 

Mr. Bowen. I wish to speak of one thing. 

The Chairman. Major, do you desire to say anything in regard 
to the statement made by the gentleman from Canada ? 

Maj. AA^ B. Ladue. Just a few words. 

STATEMENT OF MAJ. W. B. LADUE. 

Maj. Ladle. I am in the Corps of Engineers, from the office of the 
Chief of Engineers. There is very little that I would care to say on 
this subject unless I am asked for more information. 

The request for this permit has been made to the Secretary of 
AA^ar, but, so far as I know, it has not been coupled with any request 
I hat the permit of the Electrical Development Co. be revoked or 
modified in anyway. I say this because that has been touched upon 
in the argument. So far as I know the question of the revocation 
or modification of that permit, or taking away water and giving it 
to somebod}' else, has not been raised. I don't know what the Secre- 
tary Avould do on that subject. 



1 



PEESEJI\'ATI()X OF NIAGARA FALLS. 123 

Mr. Legare. You do kno^v that his attention lias not been called 
to the fact^ 

Maj. Ladue. So far as I know there has been no complaint made 
to him that they are not using- their permit. Now, there is a provi- 
sion in the Burton hnv Avhich gives the Secretary of War the right 
to grant additional permits over and above IGO.OOO horsepower, and 
this Detroit company has been informed of this ])rovision. and of 
the conditions under wh.ich additional permits can be granted. They 
have submitted certain statements which are now under consideration 
by the Secretary of AVar; so this Detroit company is not altogether 
cut out of getting a permit because of the fact that there is an 
existing ])ermit. I clon't come here Avith any instructions touching 
this permit, because nobody in our office knew the matter was going 
to be brought np. 

The CriAiKMAx. The Secretary, in granting these jDcrmits. did not 
charge anything for them? They were given gratis? 

Maj. Ladle. Yes, sir; free. 

The Ciia]r:\l\n. If the Secretary of AVar should grant the permit 
for the additional 4.400 feet lie Avould give it gratis? 

Maj. Ladle. Yes, sir; I presume so. 

The CuAiRMAx. But the State of New York avouIcI charge for it? 

]Maj. Ladue. That I don't knoAV. 

The CiiAiRJiAx. But the State of NeAv York does charge for per- 
mits, doesn't it? They bring in a revenue to the State? 

Maj. Ladue. I don't knoAv. sir. 

The Chairman. I Avonld like to have you state the position of the 
War Department, so that Ave Avill know Avhether to giA'e the power to 
the State or continue to lodge it in the hands of the Secretary of 
War. 

Mr. Garner. It ought to be stated that under the Burton laAv the 
Secretary of ^\nv would not have any right to charge for the permit. 
But if Congress should lodge this power in the Secretary of War, 
and Congress did not require any payment for it, he Avould not be 
alloAved to charge for the permit. Whereas if he Avas allowed a fee. 
then the Secretary of War could charge that fee. 

NoAv. I rememijer about the pei'mit question. We had a special 
session last summer Avhen the matter of the extension of the Burton 
Act Avas before this committee, but on account of the time limit and 
the unknoAvn merits of the case, Ave decided to report a bill extending 
it until March 1. At that time this identical question of power be- 
ing furnished to Detroit Avas before this conmiittee and some state- 
ments made about it. That is my recollection. 

The Chair ALVN. That is right. 

Mr. (lARNER. I Avas someAvhat surprised to learn that the Secretary 
of AVar's attention had not 1)een called to the fact that this contpany 
was only using a small portion of its permit, and another company 
clamoring for an opportunity to enter the I^iited States Avith this 
poAver. AAlien you made the statement to-day that his attention had 
not been called to it and that the matter had not been touched upon 
it Avas a surprise to m^e. 

Maj. Ladi'e. AVha/ I intended to say, Mr. (nirner. Avas that, so far 
as our office knoAvs. i* has not been attacked. That is. no papers have 
come to us: but wlirtt has happened in the Secretary's office I don't 



124 PRESERVATION OV XTAGAHA FALLS. 

knoAv. There i?- one other inattor I Avoukl like to comment on at the 
same time 

The Ciiair:han. A little later. Major. 3Ir. Bowen. how long do 
you think it "syill take you to conclude? 

Mr. Bowen. I have some information in regard to electrical con- 
tracts that you have sought for and also some suggestions as to what 
action has been taken before in similar applications. 

The Chairm\n. AVe Avill go on until 5 o'clock. 

Mr. BowEN. In addition to the change in the title of the bill (Mr. 
Bowen refers to the Simmons bill). I liave a correction where it says 
" above the Falls of Niagara within the State of New York for 
power purposes." Now, my suggestion is to change that to read : 
" For all purposes mentioned in the treaty." Furthermore, in line 8 
of the Simmons bill, after the words " such diversions," I would 
suggest inserting these words: '"And who shall conserve the useful- 
ness of the water, to its fullest extent." Now, furthermore, to cover 
the point of the additional 1.600 feet, after the word " nine " in line 
12, insert "to Avit : Twenty thousand cubic feet per second for 
power and one thousand six hundred cubic feet per second for 
sanitation and navigation," covering the point that I have explained. 
Then, on page 2 of the Simmons bill, lines 3 and 4, strike out 
" commissioners on the part of the United States in the," leaving 
it to read : " That no such permit shall be granted allowing diver- 
sions of water exceeding in the aggregate fifteen thousand six 
hundred cubic feet per second without the consent of the State 
of New York and of the international joint commission provided 
for by said treaty;" and adding at that point, in line 5: "And 
all further diversions shall be governed by the rules of prece- 
dence and preference made in the treaty, and shall be limited to 
such amounts as shall not injure or interfere with the navigable 
capacity of Niagara Kiver, or its integrity and proper volume as a 
boundary stream, or the scenic grandeur of Niagara Falls," leaving 
it in the discretion of the Secretary of War to decide whether any 
application shall come within the terms of the treaty. I think, with 
those corrections, there is no objection to the Simmons bill, and 
almost the same corrections could be inserted in the Smith bill. 

The Chairman. Have you made the corrections in both bills? 

Mr. Bowen. Yes, sir. I started to refer to a part of the case as 
presented in a case before the Rivers and Harbors Committee on the 
Alexander bill on January 6. 1911. There we showed our case very 
completely in its essential points. To further illustrate the points, I 
have here a signed statement issued by Mr. Isham Randolph, of 
Chicago, stating the reasons why the grants should be made to the 
Erie & Ontario Sanitary Canal Co. : 

Reasons why Congress and the International Joint Commission shoitld grant to 
the Erie <£• Ontario Sanitgrg Canal Co. the right to divert from Lake Erie and 
use 6,000 Clinic feet of water per second. 

In presenting an argument to Congress and the International Joint Couiinis- 
sion on l)eliiilf of the Erie & Ontario Sanitary Canal, the following points 
shonld be brought out : 

First. Buffalo is discharging its sewage in a raw state into the Niagara 
River and the waters of sjiid river are thereby polluted and rendered unfit for 
potable use. 



PEESERVATION OF NIAGARA FALLS. 125 

This liver is the natural source of supply for cities ami villages on botli sides 
of its cliannei, and the inhabiiants of said cities and villages have learned by 
sickness and death, which medical science has truly traced to the water supjily, 
that the water of Niagara River was unwholesome and laden with pathogenic 
germs. 

To secure relief from this deplorable condition, resort has been made to arti- 
ficial means of purifying the water taken from the river for potable use, with 
results not always satisfactorj^ but always expensive. This condition will con-t 
tinue to aflect the inhabitants of the Niagara frontier just as long as the uu- 
purifie<l sewage of Buffalo flows into the river. An adequate purification 
system for the city of Buffalo means an initial expenditure of many millions of 
dollars and au anuunl outlay for operation and upkeep which would represent 
the interest on many millions more. The alternative to sewage purification 
would be to abandon the Niagara Kiver as an open sewer and the discharge of 
the sewage into some channel or channels which would carry it off. This propo- 
sition is practicable, but its cost would be very great, probably as great as the 
creation, oj)eration, and upkeep of an adequate purification plant. 

Here arises thv ojiportunity for private enterprise to do for the city what it 
hesitates to do for itself. Seeing this opportunity the projectors of the Erie & 
Ontario Sanitary Canal have fornuilated a ))roject and oftere<l it as a means of 
diverting the sewage of Buffalo from the Niagara River. 

Brictiy stated, this project contemplates reversing the flow of the Buffalo River 
and Smokes Creek through a tunnel several miles iu length. The flow into 
which from the south is through an open channel, and away from which on the 
north is through an open channel, which finally discharges into the gorge of 
Eighteen Mile Creek. As an auxiliary to the consti'uction described, it is pro- 
posed to use that part of the Erie Canal along the water front of Buffalo and 
extending north to the adopted project for the barge canal. 

This costly project is not offered as a free gift: there are but few philanthro- 
pists iu the world who can make such a kingly donation to humanity; the 
projectors believe that they can be compensated for their outlay by a gift which 
will cost their beneficiaries nothing. That gift is a right in perpetuity to 
absti-act from Lake Erie to feed the channels which they will provide 6,000 
cubic feet of water ]ier second. This water in passing from Lake Erie to Lake 
Ontario will drop 326.42 feet; taking the mean level of Erie from 1S60 to 1906 
as 572.60 above sea level, and the mean level of Ontario for the same period 
as 246.18 (see (ieneral Chart of Northern and Northwestern Lakes, issued by 
the War Department. Jan. 6, 1908. Catalogue A). If we assume 14.42 feet as 
the loss of bend due to slope and other causes, there I'emains a power-producing 
drop of .312 feet: at an efficiency of 80 per cent, 1 cubic foot dropping 11 feet 
will produce 1 horsepower: therefore, if we divide 312 by 11 and multiply by 
6,000 cubic feet per second, the result will be 170.160 net electrical horsepowei*. 

Now iu the conservation of a natural resource that use is best which yield? 
the greatest amount of service and consequent benefit to the human race. This 
condition will be reached iu the highe.st possible degree of attainment iu cari-y- 
ing out the project put forward by the originators and developers of the plans 
for the Erie & Ontario Sanitary Canal. 

This statement is borne out first by the fact that by means of this jiroject the 
sewage of Bufl'alo will be kept out of the Niagara River, leaving that stream 
an unpolluted and healthful source of supply for the towns and villages along 
its banks, both on the American and on the Canadian sides — a result which 
will be recognized as of primary and vital imi)ortance: secondly, in no other 
way can the volume of wiiter which it is jiroposed to extract from Lake Erie 
be made as useful <'onnnercially or caused to pro<1uce so high a revenue. The 
amount of th;!t i-evenue. it nnist be remembered, is not to be measured by the 
net electrical jiower indicated at the switcblioard. for it is well known that 
electrical companies .'ire enabled to sell from 25 to 50 per cent more jiower than 
they are tbcoieticnny producing, by reason of the fact that all patrons are not 
synchronous users of power. 

Under Articio A" of the treaty between the Uinted States and Great Britain 
relating to ])oundary waters between the United States and Canada, proclaimed 
May 13. 1U10. the United States "may" authorize and permit the diversion 
within the State of New York of the waters of said river above the Falls of 
Niagara, for iiower inirimses. ^not exceefling in the aggregate a daily diversion 
at the rate of 20.000 cubic feet of water per second. * * * •' xlie prohibi- 

28305—12 9 



126 PRESEEVATION OF NIAGARA FALLS. 

tioiis of this article shall not apply to the diversion of water for sanitary or 
domestic purposes, or for the service of canals for purposes of navigation." 

Under the operations of the Burton bill, the takinf; of water from the Niagara 
River on the American side Iris been limited to 10,600 cubic feet per second, 
BO that there is a margin of 4.400 cubic feet per second which may become 
available for water-!)ower purjioses. For this surplus water there are rival 
applicants; two of these are companies now in successful operation; one of 
these companies is the Niagara Falls Power Co., operating under a head of 
330 feet, or only 41.0)0 per cent of the total difference in level between Lakes 
Erie and Ontario; the other is the Niagara Falls Hydraulic Power & Manu- 
facturing Co., operating under a head of 210 feet, or 04.:>o per cent of the total 
difference in level between Lakes Erie and Ontario. 

The Erie & Ontario Sanitary Canal Co. proposes to operate under a head of 
312 feet, or 95.58 per cent of the total difference in level between Lakes Erie 
and Ontario. 

As a further comparison of the useful work at each of the power sites named, 
it may be stated that one cubic f<K)t of water used by tlie respective companies 
on an efficiency basis of SO per cent gives : 

Horsepower. 

For the Niagara Falls I'ower Co 15.4 

For tlie Niagara Falls Hydraulic Power & Manufacturing Co 23. SO 

For the Erie & Ontario Sanitary Canal Co 35. 45 

The Erie & Ontario Sanitary Canal development shows an efficiency 31^ per 
cent higher than the most efficient of tlie other two companies in this material 
phase of power produced, and as a conservator of life and health it stands 100 
per cent above any competitor. 

Objections to ahstra cling icutcr from Lake Eric and from Xidfjurd River. 

The valid ob.iection to abstracting water from Lake Erie lies in its diminish- 
ing slightly the depth of navigable water and thus harmfully atleciing lake 
trommerce. This objection can be met in one or other of seseral ways. A dam 
such as was recommended by the Board of Eiigineers (-n Deep Waterways be- 
tween the Great Lakes and the Atlantic Seabo.ird (see p. 21)3, H. Doc. No. 
349, 50tli Cong.. 2d sess. ) would meet all objections raised by navigators on 
the scoie of reduced dejith. This method is opposed by tlie American section 
of the International Waterways Connnission, because of the incre:ised danger 
of flood damage to Buffalo, "' and for the postponement of the date of opening 
navigation in the spring" (see pp. 7 and 8. Sixth Progress Report of the In- 
ternational Waterways Commission, Nov. 1, 1910). 

The const nution of the Erie & Ontario Sanitary Canal would care for the 
flood condilioiis which inspired the apprehension of the conmiissiou. by affording 
outlet for tlie higli waters; the commission however believes that regulating 
works can be consti'ucte<l whicli will accomplish the purjioses for which the dam 
(which they condemn) was designed. (»See p. S of the reiiort of Nov. 1. ]!>10, 
published as H. Doc. No. 779. 01 si Cong.) 

An alternative treatment which will semre tlio regulation of depth in Lake 
Erie is that suggest(>d by >rr. J. Edward Thebaud and illustrated on page 619 
of House DcKunient No. 200SS, Sixty-tirst Congress, second session. 

As an engineering laoblem there is and can be no doubt of a successful 
BOlution which will bring about the regulation of Lake Erie for an expenditure 
wliich will be within reasonable limits. 

We now iKiss on to the Niagara River. The abstraction of water from the 
Niagara River diminishes the volume of flow over the American and Canadian 
Falls and tends to lessen the grandeur and beauty of that wonderful work of the 
Great Creator. The consensus of opinion of the members evidenced by the 
report of the International Waterways Commission is that the flow over the 
Falls ni.i.v he reduced niipi^'^^vimately 60.tH)0 cniiic feet per second without ma- 
terially (leiracling from the beiiuiy and sublimity of the spectacle. 

In our .iiidgnieut it is within the scope of engineering accomplishment to 
construct such diffrisi(>n works above the Horseshoe Falls as will increase the 
beauty of the Falls and a.dmit tif a still greater diversion of tl'.e water for 
commercial uses. The contour of the Falls changes steadily. The escari)ment 
is being worn away year by year to an extent w'liich attracts the iitteution of 
any close observer wlio has the privilege of seeing the Falls constantly or even 
at long intervals. 



PRESERVATION OF NIAGARA FALLS. 127 

The Horseshoe Fjills has lost the form whioh gave it that familiar designa- 
tion, and it is .sjradnally assuniins a V shape. At the apex of this V the water 
is of fireat deptli and its destructive force is 5;i.i;antic. The approach to the apex 
of the V is throuf^li a deep channel, and the way to arrest the rapid erosion 
which is goiny on is to choke tliis deep channel or thalweg, until the waters 
are forced to flow in greater deiitli over the entire rim of the Falls. 

The writer has developed a project for doing what lie here suggests. He 
explained it to President Taft in 1909 and received his approval as a layman, 
not as an engineer. In February of the present year Mr. Taft gave the writer 
a letter of introduction to Mr. Fielding, minister of finance. Dominion of Canada, 
bringing the writer's proposition to his attention. This letter was presented 
to Mr. FieJding in Ottawa on February 13 last. Mr. Fielding introduced the 
writer to Dr. Pugsley, minister of public works of the Dominion, and to him and 
to his engineering ,'uivisers. Mr. Louis Coste and Mr. A. .St. Laurent, he explained 
the methods of creating diffusion works which would tend to arrest the rapid 
recession of the three Horseshoe Falls, and diffuse the volume of water 
evenly over the crest of the Falls and add greatly to the beauty of the cataract 
and permit a more liberal use of the water for conuuercial purposes. The 
creation of tliis diffusion work must be accomplished under a treaty between 
the United States and Canada, and it should be created as an international 
work. • 

ISHAM RaWDOLPII. 

Chicago, Aufjust 2, 1911. 

A Member. Is he in favor of this proposition? 

Mr. BowEN. Yes; he is otir chief engineer. I woiJd say right 
here that the bonded indebtedness of the city of Buffalo is so great 
that they are unable to do this as a public improvement. 

The Chairman. Does that finish your statement? 

Mr. BowEN. The city of Buffalo asked the Secretary of War to 
do this thing two years ago, and in their resolutions asking the Sec- 
retar}' of War to investigate, if he decided we should have the grant, 
they asked that certain promises that we make should be incorporated 
in the grant as a condition precedent. The terms of our proposal 
were: This thousand feet of dockage, and the right not only to the 
city, but to all other municipalities and individuals on the Niagara 
frontier to drain into this canal as long as the grant will last; in 
addition to that, we will voluntarily put in this provision that 
although now- the rate charged in Buffalo is not to exceed 9 cents per 
kilowatt-hour, it shall not exceed 4^ cents per kilowatt-hour; and 
furthermore, that the city in consideration, shall give its aid in the 
promotion of this enterprise, and use of such sewage, and the right 
and permission to use the streets for conduits under terms not more 
onerous than those given to the other companies in Buffalo. And this 
contract goes into the record. 

The Chairman. Very well; have you finished? 

Mr. BowEN. I have some few remarks. 

CONTRACT FORM WITH MUNICIPALITIES. 

This agreement, made this — day of , 191- between the Erie & On- 
tario Sanitary Canal Co., a cori)oration of the State of New York, party of the 
first i)art, and the city of Buffalo, a municipal corpori«^ion of the State of 

New York, by , its mayor, with the concurrence of the common 

council of said city, party of the second part, witnesseth : 

Whereas said party of the first part has obtained or expects to obtain the 
consent of the Secretary of War to talie water from Lake Erie for the use of 
the proposed canal, extending from Lake Erie to Lake Ontario; and is to con- 
struct and operate said canal for the purpose, among others, of furnishing 
power to industries operating along the line of said canal, and to such munici- 
palities adjacent thereto as may desire to take advantage of the opportunities 



128 PEESERYATIOX OF NIAGARA rAIj:.S. 

afforded by said canal: of receivinj; and disposiug of in a sanitary manner the 
sewage of such municipalities and industries; of abating the periodical floods 
caused by the ovei'tlow of Bufl'alo liiver and Cazenovia Creek; aud of aftordiug 
means for reversing the How of streams and sewers now emiJtying into Lake 
Erie and Niagara Kiver, thereby purifying the water supply of the Niagara 
Frontier: and of serving as a branch of the barge canal now in process of 
construction by the State of New York, aud affording dockage facilities for 
private and, if need be, for municipal uses. 

Whereas said party of the first part desires the cooperation of said party of 
the second part in the promotion of said enterprises, and said city of Buffalo 
has manifested its willingness to cooperate by joining said party of the first 
part in its api)lication for the consent of the Secretary of War, by the following 
resolution duly adopted by the common council of said city aud apiirovetl by 
the mayor, viz : 

"That the city of Buffalo.- by its common council and mayor, hereby com- 
mends to the favorable consideration of the Secretary of War the memorial 
of the Erie & Ontario Sanitary Canal Co.. and believing that the entei'- 
prise, if feasible at all, and if established and conducted with due regard to 
the public welfare, will inure to the immeasurable benefit of sanitary and 
industrial interests of national scope and iufiuence, urges the Stn-retary of 
War to grant the prayer of the petition of said Erie & Ontario Sanitary Canal 
Co., provided that upon investigation he is convinced that the (•<»nipany's 
plans are i)racticable from a legal and engineering point of view, and provided 
further that such grant be made exi)ressly subject to the following conditions 
precedent. 

(1) That prior to the commencement of the work of excavating and con- 
structing said canal, or of proceedings for the appropriation of lands therefor, 
said company shall enter into written contracts with the city of Buffalo, 
and such other municipal corporations along the line of the proposed canal 
as may desire such arrangements, securing to the said city of Buffalo and 
other municipal cor[)orations, in the interest of the public health, the perpetual 
right to the free and unlimited use of said canal for the delivery of sewage 
and drainage (hereto at the most sanitary and convenient points, without 
charge to any of said municipal corporations for such use and itrivilege; 
securing like privileges to individuals and private corporations occupying the 
territory adjacent to the canal, and affording such assurances as may bo 
re(piired that such sewage and drainage shall be disposed of in a sanitary 
manner ; 

(2) That prior to the commencement of work or of proceedings for the 
acquisition of lands for said canal, said Erie & Ontario Sanitary Canal Co. shall 
also stipulate by contract Avith the said municipl corporations, or such of them 
as desire it, to furnish to all persons and corporations power and light for 
mimicipal, industrial, business, or domestic purposes on terms which shjill 
be just and ecpial to all consumers, admitting of no discriminations among 
consumers similarly situateil, excepting in favor of municipal corporations 
as contrasted with private industrial or business corporations or individuals; 

(3) Such other conditions calculated to promote the public interests as said 
Secietary of War may in his judgment deem advisable to itreseribe." 

Now. therefore, in consideration of the exchange of mutual benefits as afore- 
said, and of the sum of one dollar paid by each of the parties hereto to the 
other. re<-eipt whereof is hereby confessed and aekuowledge<\, the pai'ties 
hereto agree as follows: 

Said parly of the first part hereby grants to the party of the secimd part 
the perpetual right to constr\ict sewers and drains from such points in the 
city of Buffalo as may be determined upon by said city, to and into the said 
canal of the party of the first part, and to empty therefrom into said canal its 
sewerage and drainage that is not prohibited by law; and thai- no charge 
whatever of any kind or nature shall be made by said i)arty of the first part 
to sjiid city of B.uffalo of the stK-ond part for such ust» and privilege, other than 
the cooperation of s:iid ci'y mentioned in the foregoing resolutions: the party 
of the first jiart shall riH'eiv(> and dispose of said ajiproved sewage and drain- 
age in a thoroughly sMuitary manner, subject to the api)roval of the State and 
local <lepartmeuts of liealtli. 

I'lton receiitt of written ai)plica'ions in form accej)table to said dei)artmeu(s 
of health, which shall bind the applicants not to deliver or cause or i>ermit to 
be deliveretl improjier or objectionable sewage or drainage, and not otherwise, 
the party of the first iiart shall also gnint freely and witiiout charge, like i)riv- 



PRESERVATION OF NIAGARA FALLS. 129 

ileges of sewage and draiuatre to individuals and i»rivate corporations occupy- 
infj lands adjacent to said canal. 

In measure projiorliona'e lo its otlier sinnlar oblisj'tions to other numicipali- 
ties and other patrons, said party of tlje first part shall also furnish to said 
city of Buffalo sutticicMit current for power and lisht for municipal purposes, 
upon the demand of said municipality, and at such prices (not to exceed 4* 
cents per K.W.II.) and on such terms as shall he hereafter mutually agreed 
upon, hi no case to be higher or more burdensome to said city of Buffalo than 
to other municipal corjiorations. or to any individuals or industrial corporations 
similarly situated along the line of said canal. Said party of the tirst part 
further agrees to furnish to individuals and business and industrial corpora- 
tions within the city of Buffalo, on terms which shall be just and equal to all 
consumers similarly situated, sufficient curreui for power and light for indus- 
trial, business, or domestic purposes, at prices not to excetnl 4i cents ]ier K.W.H. 

Said party of the tirst )iart also agrees to provide for the use of said city 
of Buffalo, at some convenient point, a frontage along its canal of not less 
than 1,000 continuous feet for dockage purposes, provirled. however, that said 
city of Buffalo shall exercise its option in this regard at some time within 
five years from tlie time of the opening and operation of said canal for navi- 
gation, and immediately after the exercise of such oiition shall eonunenee con- 
struciion of docks for the benefit of said municipal corporation and its inhabit- 
ants; the privilege hereby granted to be upon such reasonable terms as shall 
be agreed upon by the parties hereto. 

Said party of the first part further agrees to save said city of Buffalo harm- 
less from all costs, charges, damages, and rights of action accruing or arising 
from the construction or operation of said canal, or from insanitary conditions, 
if any, that may result from the exercise by the ixirty of the second part of 
any of the privileges hereinbefore granted. 

Said party of the second part, in consideration of the foregoing, agrees to 
cooi>erate with the party of the first part in securing such privileges from the 
Government of the United States and from the State of New York as may be 
necessary to the snt-cessful construe ion and o^ieration of said canal, provided, 
however, that such cooperation shall not entail upon said party of the second 
part any pecuniary loss or cost: and said city of Buffalo grants to the party 
of the first i)art such sewage and drainage and the right, permit, and license 
to use and occupy and cross o^■er or under any and all streets, alleys, and waters 
of said city during the life of this contract, for any and all electric distribut- 
ing lines, conduits, and cables that it may find necessary for distributing cur- 
rent throughout the present or future limits of said city upon as advantageous 
terms and with not more expensive construction than are or may hereafter be 
enjoyed by or permitted or gr.-inted to any other company under similar con- 
ditions. 

This agreement shall be binding upon and shall inure to the advantage of 
the successors and assigns of the parties hereto. 

In witness whereof, the parties hereto have caused these presents to be duly 
signed and sealed the day and year first above written. 

The Chair:v[ax. If yoii have anything else relevant to the subject- 
matter to put in the record yon may give it to the reporter. 

Mr. BowEN. Yes, sir; for instance, the rates in Niagara Falls. 

Mr, Cooper. ^Yhat about the rates right noAv? I thought you 
could give a summary. 

Mr. BowEN. In Niagara Falls, Ontario, it is 4^ cents per kilowatt 
horsepoAver — in Buffalo it is not to exceed cents. The power rates 
in Niagara Falls, Ontario, are. for power delivered at commercial volt- 
age, $2?) ])er horsej^ower. less $?> if paid before the end of the month. 
In Biiti'alo the average for all ])tirposes is Avithin a fcAv cents of $35 
per horsepower per year. There is no competition, because the com- 
panies tJiere are both subsidiary companies of the Niagara Falls 
rower Co. .V list of all these comjxinies and their directors and their 
securities is in a pamphlet Avhich. if it is of any interest to the com- 
mittee, is at your service. 

The Chair^ian. Leave that with the committee. Just give the 
name of it to the reporter to identify- it. 



130 PRESERVATION OF NL\GARA FALLS. 

Mr. BowEx. '• Statistics of local and miscellaneous securities, by 
J. C. Dann & Co./' published in December, 1909. 

I would like to state that a similar grant to that we ask you for 
was made in 1905 to the Mississippi liiver Power Co., at Keokuk, 
Iowa. I have a copy of the grant made to them, and it was on condi- 
tion only that they should give the free use of enough electric power 
to operate the lock, and they should build the dam, lock, and dry 
dock at their own expense. They will be generating 200,000 horse- 
power next 3' ear, and thej' are an example of good faith. 

The Chairman. You may get up all these things and give them to 
the reporter. We will now adjourn until to-morrow morning. 

Whereupon at 5 o'clock p. m. the committee adjourned until Friday 
morning at 10 o'clock, this hearing being adjourned until 2 o'clock. 

The following are the changes in the Sniitli bill suggested by Mr. 
Bowen : 

In the preamble strike out " tiftli article of the"; strike out " Canada " and 
insert "Great Hritain " ; after "nine" add "and for other purix)ses." 

Page 1, line 3, after " diverted from " add " Lake Erie in Erie County, New 
York, or from." 

Page 1, line 5, strike out " power purix)ses " and add " all purposes mentioned 
in Siiid treaty." 

Page ], lino 10, after "nine," insert " to wit: 20,000 cubic feet per second for 
IK)wer. and 1,(J00 cubic feet per second for sanitation and navigation." 

Page 1, line lO; after above insertion, add "such individuals, companies, or 
corporations only as shall conser\e the usefulness of the water to its fullest 
extent shall be given permits." 

Page 2. line 10, strike out " made to " and add "given with the consent of." 

Page 2. lines 11. 12, and 1.3. strike out "with full ix)wer and authority to 
said State to make such grant or grants of the use thereof as it may determine 
to be for the public interest," and add "and shall be governed by the rules of 
precedence and preference made in Siiid treaty ; and shall be limited to such 
amounts as shall not injure or interfere witli the navigable capacity of Niagara 
River or its proper volume as a boundary stream, or the scenic grandeur of 
Niagara Falls." 



PETITION TO CONGRESS AND TO THE INTKRN.VTIONAL JOINT COMMISSION IN BEHALF OF 
EKIE & ONTARIO SANITARY CANAL CO. 

Whereas it is stipulated in Article \' of the treaty between the United States 
and Great Britain, signed .January 11, I'.HKt, commonly known as the waterways 
treaty, that the United States may authorize and permit the diversion within 
tlie State of New York of the waters of Niagara Itiver above the Falls for power 
purposes, not exceeding in the aggregate a daily diversion at the rate of 20,000 
cubic feet per second, provided the level of I^ake Erie and the fJow of Niagara 
River sliall not bo appreciably lowered: 

Whereas the prohibition of Article V does not apply to the diversion of water 
for sanitary and domestic pnritoses. .-md for the service of canals for the pur- 
pose of navigation, and it is stipulated in Article IV that the boundary waters 
shall not be polluted on either side to the injury of health or property on the 
other : 

Whereas the cities bordering on the Niagara River and situate in the district 
contiguous thereto are subjected to ei)idemics of typhoid fever, caused by tlie 
polluted water taken from Niagara River, and considerations of public health 
demand the ai)atement of these dangers without delay: 

Whereas the Erie & Ontario Sanitary Canal Co. has been organized under 
the laws of the State of New York to construct without State or Federal aid 
a can;il between I^akes-Erie and Ontario, lieginniug at a i)oint at or near Smokes 
Creek in the city of Lackawanna, tbent-e to a I'oint at or near tlie nioutli of 
Eighteen Mile Creek on Lake Ontario and laterals thereto; 

Whereas the li.-irge-canal law of Nt>w York State ( sec. o. eh. 147. Laws 100r>) 
makes no provision for tlio use of the Erie Canal from the (Juanl Lock at P.lack 



PRESERVATIOiSI OF NIAGARA FALLS. 131 

Rock. I'.iiff;ilo, to ToHiiwaiKl;!, and said lOrie & Ontario Sanita.r.v Canal Co. 
offers to <leepen. widen, and maintain said portion of the Erie Canal from Blaclc 
Rock to Tonawanda as a branch of the barge canal without cost to the State 
of New York, and under i)lans to be approved by the canal board and to be nsert 
in connection with the main channel of the Erie & Ontario Sanitary Caual lo 
stop the pollution of Niagara River and the barge canal; 

Where.-.s said canal may be used free of cost l)y the cities of Lackawanna, 
Buffalo, Tonawanda. North 'I'onawanda. Niagara Falls. Lockport, and all other 
municipalities and connnunitics situate upon the Ni.agara frontier, to carry off 
all the sewage and stoi'ni waters nov\- flowing from said cities into Lake Erie 
and the Niagara River; 

Whereas said canal will be of sutlicient depth and width to enable boats, 
barges, and other water craft of large tonnage to navigate the same from its 
beginning on Lake Erie to a point intersectisig the Erie Canal at or near 
Pendleton, thereby increasing the efficiency and value to the public of said Erie 
Canal, and providing addilional terminals for the barge canal; 

Whereas the level of Lake Erie will not be lowered by the l)nilding of said 
canal so as to interfere witli or affect its navigability, and the waters fliowinj? 
within the Niagara Iviver shall not be diverted so as to effect the beauty and 
grandeur of the volume thereof tlowiug over Niagara Falls; 

Whereas the International Joint Commission must hear and pass npon the 
application of said comi)any for the use of the necessary water for the canal : 
Now, therefore. 

We respectfully ask that a grant of water from Lake Erie be made to the 
Erie & Ontario Sanitary Canal Co.. conditioned as follows: 

1. That said company be authorized to take G.OOO cubic feet of water per 
second from Lake Erie for sanitiition. navigation, and power — 4,400 cubic feet 
thereof being the remaining part unused of the 20,000 cubic feet allowed for 
power on the American side under the treaty, and 1,600 cubic feet thereof being 
an allowance under said treaty especially for sanitation and navigation; which 
volume of water shall be taken through three channels designated as Buffalo 
River, Smokes (^reek, and Black Rock Harbor. 

2. That said company within two years after the date of the gi-ant shall 
begin construction of said canal, without seeking from State or Nation other 
aid than that afforded by such cooperation as may properly be effected between 
Federal and State authorities, and shall with due diligence prosecute the work 
to completion. 

3. That in consideration of said grant said company shall give to the citie.s 
of Lackawanna, Buffalo, Tonawanda, North Tonawanda, Niagara Falls, Lock- 
port, and all other municipalities, public and jirivate corporations and in- 
dividuals situate or living in what is known as the Niagara frontier, the free 
use and right to use said canal during the full term of the grant, for sewage 
disposal purposes and for carrying off' flood waters caused by storms. 

4. That in consideration of the facilities which it will afford to the com- 
mmiities. municipalities, corporations, and individuals enumerated, said com- 
pany shall have and enjoy for 99 years the right to and possession of all the 
water power which it is possilile to develop from the volume of water which it 
will be permitted to withdraw from Lake Erie and cause to flow through its 
channel into Lake Ontario. 

5. That said company shall have the right, when Buffalo River shall have 
been sufficiently deepenetl and enlarged to a junction with said canal, to make 
a proper connection of said river with said canal, and cause the waters of 
Lake Erie to flow through said Buffalo River into said canal. 

6. That said company may make such changes and improvements in Smokes 
Creek, J^llicott Creek, and other streams in Erie and Niagara counties, as will 
permit water to enter said streams from Lake Erie and Niagara River, and 
flow through them into Lake Ontario; and may build and maintain at the 
mouths of Smokes Creek and Eighteen Mile Creek such protecting piers and 
docks as may be necessary, all of which construction affecting navigation shall 
be done under the direction of the AVar Department. 

7. That said company shall forfeit its grant should it be judicially deter- 
mined that it has entered any conspiracy or unlawful combination or monopoly 
in restraint of trade: and said permit shall not be transferable without the 
approval of the Secretary of War. and no such approval shall be given without 
the consent of the State of New York; and no electric current produced under 
said grant shall be transmitted to any point without the State of New York 
without the consent of the State. 



132 PRESERVATIOX OF ^;IAGAR.V FALLS. 

8. That said coiiiiiany shall i»r<>ve to the satisfaction of the Secretary of War 
that it will produce more electrical horsepower from every cubic foot of water 
l^er second to he ustnl l»y it under such jirant than can be produced by any 
other company. 

The foregoing preamble and request was read, considered, and adopted at a 
regular meeting of the Central Council of Business Men. Taxpayers, and Resi- 
dents" Assoi-iation of Buffalo, representing upward of 3,000 members, this 11th 
of September, lim. 

Willis H. Tf.nxaxt, Srcrctary. 

Adopteil also l)y city of Lackawanna, city of Lockport, county supervisors of 
I'rie (^ounty, N. Y. ; village of Williamsville, village of Kenmore. village of 
Lasalle, village of Youngstown, city of Buffalo. 



ERIK iV ONT.MUO S.\MT.\KY CAX.M. CO. WA.NTS A SlMU.Al! l.CAXT TO THIS. 

I I'unLu; — No. 05. | 

AN ACT CJrantiny; to the Keokuk ;in<i Ilauiillon Water t'ower Couipauy rislits to con- 
struct and maintain for tlie inii)r()V('nii'nt of naviiiation and developmont of water 
power a dam across the Mississii)])! Kiver. 

lie it enacted hy the Senate ami House of Repiescntatice-^ of the I'nited 
States of America in Congress assemhleil, That the assent of Congress is 
hereby given to the Keokuk and Hamilton Water Power Company, a corpora- 
lion created and organized under the laws of the State of Illinois, its succes- 
sors, and assigns, to erect, construct, operate, and maintain a dam, with its 
cre.st at an elevation of from thirty to thirty-tive feet above standard low water, 
across the Mississipj)! Kiver at or near the foot of the Des Moines Kapids. 
from Keokuk. Iowa, to Hamilton. Illinois, and to construct, operate, and main- 
tain power stations on or in connection with the said dam, with suitable 
accessories for the development of water itower, and the generation, use. and 
transmission tlierefrom of electric energy and power to be derived from the 
Des Moines Bapids on the Mississippi River: Provided, That in ILeu of tlie 
three locks and the di'y dock, with their apinirtenances. now owned and 
oi)erated by the I'nited States, at the Des Moines Rapids Canal, the said 
Keokuk a>id Hamilton Water Power Comjiany shall build, coincidentally with 
the construction of the said dam and appurtenances, at locations api>roved by 
the .Secretary of War, a lock and dry dock with their aiipurtenances; the 
said lock shall be of such a kind and size and .shall have such .appurtenances 
and equipment as shall conveniently and safely acconuuodatc the present and 
prosi)ective connnerce of the Mississii«i)i River: the said dry dock and its 
appurtenances shall be such as to give space, facilities, and conveniences for 
the repair of vessels at least equal to those afforded by the existing Govern- 
nieut dry dock and .shops at the Des Moines Rapids Canal : And jirovided 
further. That the said dam and ai)purten.int works sh.ill be so designed, located, 
constructed, maintained, and operated, and the said lock and dry dock, with 
their appurtenances, shall be so designed, located, constructed, and equip]>ed. 
as to permit at all times during the season of navigation, and at any .stage 
of water, the safe and convenient navigation of steambo.-its and other vessels, 
or of rafts and barges, throngh the portion of the Mississii>iii River now 
occupied by the Des ^Moines Rapids, as well as through the entire length of 
the pool formed by the said dam: And provided further. That detailed plans 
for the construction and operation of the said dam, lock, dry dock, and aitpurte- 
iumt works, shall be submitted to and approved I>y the Secretary of War before 
the connnencement of any jiortion of the said works: and the said works shall 
be constructwl under tb.e supervision of some engineer officer of the Army 
designated for that jmriHise. and that after the apjiroval of the said plans 
no deviation therefrom shall be made with()Ut the prior approval of the Secre- 
tary of War of any such deviation: .1//*/ providid further. That compensation 
shall be made by the said Keokuk and Ilannltori Water Power Comp.any to all 
I>erson.s, firms, ov corporations whose lands or other property may be taken, 
overflowed, or otherwise damaged by the construction, maintenance, and opera- 
tion of the said works in accordance with the laws of the State where such 
lands or other pro]ierty may be situated; but the United States shall not be 
lield to have incurred any liability for such damages by the passage of this 



PltESERVATIOX Ul' .MAtiAUA FALLS. 133 

act: And provided further, That wlieu tlie said dam, lock, dry dock, aud 
appurteuiiut works shall have beeu completed to the satisfaction of the Secre- 
tary of War, the United States shall have the ownership and control of the 
.said lock, dry dock, and their appurtenances, and operate and maintain the 
same. 

Sec. 2. That the withdrawal of water from the Mississippi Kiver and the 
discharge of water into the said river, for the purpose of operating the said 
power stations aud a])purtenant works, shall be under the direction and con- 
trol of the Secretary of Wiw, aud shall at no time be such as to impede or 
interfere with the safe and convenient navigation of the said river by means 
of steamboats oi- other vessels, or by rafts or barges: Provided. That the said 
company .shall construct such suitable fislnvays as may be required from time 
to time by the Secretary of Connnerce and Labor. 

Sec. 3. That, except as provided for below in this section, the Keokuk and 
Hamilton Water Power Company shall bear the entire cost of locating, con- 
structing, maintaining, and operating the structures aud appurteu.-inces pro- 
vided for in this act: Provided. That the United States shall bear the co.st of 
the supervision of tlie work by an engineer otticer of the Army as provided for 
in section one of this act. and also the cost of maintaining and operating the 
lock and dry dock with their appurtenances, after their completion and due 
acceptance by the Secretary of AVar on behalf of the United States: And pro- 
vided further. That the Keokuk and Hamilton Water Power Company shall 
provide, in connection with such lock, dry dock, and appurtenances, a suitable 
power plant for operating and lighting the same, according to plans and speci- 
fications submitted to and ai)proved by the Secretary of War. 

Sec 4. That the act entitled '"An act granting to the Keokuk and Hamilton 
Water Power Company right to construct and maintain wing dam, canal, and 
l)Ower station in the Mississippi River in Hancock County, Illinois."' approved 
February eighth, nineteen hundred aud one. is liereby repealed. 

Sec. 5. Tliat this act shall be null and void if actual construction of the works 
herein authorized be not commenced within five years and completed within 
ten years from tlie date hereof. 

Sec 6. That the right to alter, ameud or repeal this act is hereby expressly 
reserved. 

Approved, February !», 190o. 

PROPOSKD BILL FOR CONGRESS. 

A KILL To jxivf ctTcct to llio tivatv Ix-lw.vn Hip Tnited Stalos and Oi-eat Britain sijjned 

January 11, 1909. 

Whereas it is stipulated in Article A' of a treaty between the t'nited States 
and Great Britain signed January 11. 1909, commonly known as the water- 
ways treaty, that the United States may authorize and permit the diversion 
witliin the State of New York of the waters of the Niagara River above the 
Falls for power purposes, not exceeding in the aggregate a <.iaily diversion at 
the rate of twenty thousand cubic feet per second, provided the level of Lake 
ICrie aiul the flow of the Niagara River shall not be apjueciably lowered: and 

Whereas the prohibitions of Article A' do not apply to the diversion of water 
for sanitary and domestic purpt)ses and for the service of canals for the purpose 
of navigation : and 

AA'hereas it is stipulated in Article lA' of said treaty that the boundary waters 
shall not be iH)I]uted on either sid(> to the iujiny of health or property on the 
other ; and 

AVhereas the cities bordering upon the Niagara IMver and situate in the 
district contiguous thereto are subjected to epidemics of typhoid fever caused 
by the polluted water taken from Niagara River, aud considerations of public- 
health (lemaud the a,l»atement of these dangers without delay: and 

Whereas the Erie & Ontario Sanitary Canal Co. has been organized under 
the laws of the State of New York to construct, without State or Federal 
aid. a canal between Lake Erie an<l Lake Ontario, beginning at a point at or 
near Smokes Creek, .south of the city of P.uffalo. on Lake Krie. and thence to 
the mouth of Eighteen Mile Creek on Lak»» Ontario, a distance of fifty miles. 
Diore or less : aud 

AA'liereas it is hereinafter provided that said canal shall be used froe of cost 
by the cities of Lackawamia. P.iifl'alo. Tonawanda. North Tonawanda. Ni.igara 
Falls, I.,ockporf. and all other municipalities and eommunities situate upon the 



134 PRESERVATION 0]' NIAGARA FALLS, 

Nia.wi'a fi-iditicr. to carry olT all ihe sewage and the sewage-pollutecl stonu 
waters now flowinj: from said towns, cities, and municipalities into Lake Erie 
and tl>e Niagara Hivei-. iiolluting the water thereof, to the great injury to the 
health of the i)ersons living along the said Niagara frontier: and 

Whereas the said canal will be of sufficient depth and width to enable boat^. 
barges, and other water craft of large tonnange to navigate the same fnmi its 
beginning on Lake Erie to a point intercepting the Er:e Canal at or near the 
city of I.ockport. in the State of New York, thereby increasing the efficiency 
and the value to the public of said Erie Canal; and 

Whereas the level of Lake Erie w'U not be lowered by the building of said 
canal so as to interfere with or affect its na\ igability ; and the waters flowing 
within the Niagara Kiver. now imder the conti-ol of the War Department, shall 
not be diverteci so as to affect the beauty and grandein- of the volume thereof 
flowing over Niagara Falls: Therefore, to carry out conservation of health and 
power. 

Be it rnnctcd hy the Scnair mid Hnuxc of Rcpresentativs of Ihc United States 
of Auicrica in Coiit/rcss a-ssemhled. That the Erie & Ontario Sanitary Canal Co., 
a coriKtration or.ganized under the laws of the State of New York. be. and the 
same is hereby, authorized to take six thousand (6.000) cubic feet of water per 
second from Lake Erie and Nia.gara River for sanitary purposes and canal navi- 
gation and power four thousand four huudreil cubic feet thereof being the 
remaining part of the twenty thousand cubic feet allowed for power on the 
American side under said treaty and one thousand six hundred cubic feet 
thereof being an allowance under said treaty especially for sanitation and 
navigation, which volume of water shall be taken through three channels desig 
uated as Buffalo River. Smokes Creek, and Black Rock Harbor. 

Sec. 2. That the company within two years after the passage of this act shall 
begin the construction of the aforesaid canal without seeking from State or 
Nation other aid than that afforded by such cooperation as may properly be 
effected between Fedenil and State authorities; and the said company shall 
thereafter with due diligence prosecute the work to completion. 

Sec. ;'). That in consider.-ition of the aforesaid grant said company shall give 
to the cities of Lackawanna. Buffalo. T'onawanda, North Tonawanda. Niagara 
Falls, Lockport, and all other municipalities, public and private corporations 
and individuals situate or living in what is known as the Niagara frontier, the 
free usr and perj)etiial right to use the said canal for sewage-dispo.sal purposes 
and for the carrying off of flood waters caused by storms. 

Sec. 4. That in consideration of the facilities which it will afford to the com- 
munities, nuinicipalities. corporations, and individuals enumerated in section 
three of this act the company shall have and forever enjoy the right to and 
possession of all the water power which it is possil)le to develop from the volume 
of water whicii this act permits it to withdraw from Lake Erie and cause to 
flow through its proposed channels into Lake Ontario. 

Sec. ."). That the company shall have the right, when Buffalo Itiver shall have 
been sufficiently deepenetl and enlarged to a junction with the proposinl canal, 
to make a i)roper connection of said river with said canal, and thereafter cause 
the w-aters of Lake Erie to flow through s:iid Buffalo River into the said canal. 

And further, that the said company may make such changes and improve- 
ments in Smokes Creek, Ellicott Creek, and other streams in Erie and Niagara 
Counties as will permit water to enter tlie said streams from Lake Erie, and 
through them into the canal of the said company, and through the same into 
Lake Ontario. 

And furthei*, that the said company may build and maintain at the mouths 
of Smokes Creek and Ei.ghteen Mile Creek such jn-otecting piers and docks as 
may l)e n«>cess:iry to carry out the purposes and operations of the company, all 
of whicli construction affecting navigation shall be done under the direction of 
the War Department. 

Sec <■>. That (he provisions of this law shall cease to be operative should it be 
judicially <letermined that said company has entered any conspiracy or unlawful 
combination or monopoly in restraint of ti'ade. 

Sec. 7. The Secretary of War shall extend the ])nsent permits for the diver- 
sion of I he lifreeu rlmusand six hundred cubic feet per second. 



PRESERVATION OF NIAGARA FALLS, 135 

"the IOCONO.MIC UKUrTKOISNKSS or Tills IS MAXirKST." 

Isham Randolph, JM. A. S. C. K., Consultinj: Kn^iix-iT. 

Caiindiati laws proliihif i):)Ilntion. Tlii> now intornalional treaty doclaivs that waters 
" shall not l)e polluted on either side to the injury of health or property on the other." 

The canal company will spend $:!0.0(>O.OnO of its own nx.nev in <-nnstruction and build- 
ings and will give the use of the canal perpetujtllv to all the people of the Niagara 
frontier free, without taxation, for sewage disposal and (lood abatement. Niagara River 
water can then be bad pure without filtration and zvmotie diseases will he decreased over 
50 per c<'nt, as has been proved in Chicago. 

BKIKF OF Mir.I.ARD F. nOWEN. FOR FRIE & ONT.VUIO SANITARY CANAL CO. 

All of intei-natioual treaty sliould be coveretl in the bill and not Article V 
only. 

Jnrisdiction of disposal of water should be retained by Congress absolutely, 
for purposes of stopping pollution of international waters, as well as for 
navigation. 

A precetleut for such a special grant as is asked for by us is that given to 
the Keokuk & Hamilton Water Power Co., February 9, 1905. 

A national board of health should be formetl to take full jurisdiction of 
interstate and international streams and lakes. 

Conservation of both public health and power should be insisted upon. 

This particular company that, without appropriations, will stop pollution by 
turning streams and sewers l)ack from lake and river, should be given a grant 
equal to the exi.'-ting permits, or at least to the extent of 0,000 cubic feet. 

The hearing on January G^ 1911, on 11. R. 266SS, before the Committee on 
Kivers and IIarl)or.s, present our ease quite fully. 

If tlie Niagara Falls I'ower Co.'s 8.600 cubic feet were producing power at 
an efficiency of 80 per cent, at the rate of 15.4 gross horsepower per cubic foot, 
their production would be 105.952 horsepower. 

With 0,000 feet we will produce 170.100 horsepower. 

Independent competition should be insisted ui)on. 

As a conservator of life and health, this company stands 100 per cent above 
any competitor. 

New York State is interested from the standpoint that barge canal terminal 
facilities will be greatly increased, without appropriations. 

Buffalo is interested because floods will be abated and sewage disposed of, 
without apin-opriations. 

Other municipalities on the Niagara frontier petition for these things. 

The status quo as to the other two companies will be maintained, and they 
testify that they are prosperous. 

Medical societies and health officers of the frontier are clamoring for relief. 

tieu. Bixby testities that the use of the balance of the 20.000 cubic feet on the 
American side will not unfavorably affect scenic beauty. 

Industri.-il development to the fullest practicable extent is carried out by 
this plan. 

AFTER RECESS. 

The committee reassembled at 2 o'clock p. m. 

The Chairman. The committee will hear from Mr. Monahan. 

STATEMENT OF GEORGE F. MONAHAN, OF DETROIT, MICH. 

The Chairman. Will you be good enouoh to give the reporter 
your full name? 

'Sir. Monahan. George F. Monahan, Detroit, Mich., representing 
the Electrical Distributing Co., and the Federal Electric Light Sc 
Power Co. 

I might say, by way of prelude, that the Federal Electric Light & 
Power Co. and the Electrical Distributing Co. are practically, for all 
practical purposes, identical corporations. In other words, the Elec- 
trical Distributing Co. is a company organized under the laAvs of the 
Dominion of Canada, with a permit from the Canadian Government 



136 PliKSKIiVATIOX OF NIAGARA FALLS. 

• 

to export power from the Canadian side to the Detroit side of the 
river. The Federal Electric Liofht & Power Co. is a company orufan- 
ized under the laws of the State of ^Michioan. It is, in a sense, a 
SLibsidiar}' company, orcanized for the purpose of fulfilling that part 
of the law Avhich. as we interpreted it. required the formation of a 
company on this side of the river in order that there might be a per- 
mit granted by the Secretary of War to a company upon this side to 
receive as well as a company on the other side to transmit. 

We are asking that the situation as presently extant be so arranged 
as to permit the transmission of power from Niagara Falls to the 
city of Detroit. Perhaps it might not be amiss for me to give to the 
committee a brief resume of the facts leading up to our attempt to 
secure Canadian poAver for the city of Detroit. I assume that the 
committee is more or less familiar with the situation upon theCana- 
dian side relative to the distribution of power. I need not enter into 
the activities upon the part of the Civic Federation, so-called, back 
in 190.5 directed toward the preservation of Niagara Falls. Power 
companies had already at that date been established, and subsequent 
to their establishment the Canadian Government, possibly realizing 
the possibilities of the situation from the standpoint of theii- own 
citizenship, determined to embark in the enteri)rise of su])plying to 
the Canadian people power at a cheap rate. As a result of their 
activities the so-called liydroelectric commission Avas formed, consist- 
ing of tAvo members of the cabinet and one member of parliament, 
which commission has been continually in existence up to the present 
time. That commission contracted with the Ontario Power Co. for 
delivery to the commission — Avhich represented the Dominion of 
Canada or rater the Province of Ontario and in a sense the Dominion, 
as I understand it — certain of the poAver Avhich the Ontario Power 
Co. Avas then developing. Contracts were made for the deliAery to 
the hydroelectric commission l)y this company of one-half of the 
amount of power that Avas then being generated. 

The manner in which the hydroelectric commission operates, briefly, 
is this: It procures estimates as to the cost of building transmission 
lines from the Falls to a particular municipalitA' Avhich desires to 
have the ]iower extended to that municipality from the P'alls. The 
municipality itself votes upon tlie proposition as to Avhether or not 
it desires Niagara Falls poAvei'. Estimates are had as to Avhat the 
cost Avill be. The actual cost to the Government of the transmission 
is based upon the municijjality in the Avay of a charge, and the mu- 
nicipality itself has, as its particular business, to establish trans- 
mission lines through the municipality itself, and transforming sta- 
tions. The power is given to the city at cost. As a result of these 
activities many of the cities in Canada Avere supplied iuul are at 
present being supplied Avith Niagara power. The reduction in cost, 
according to statistic^, with which I have somewhat familiarized my- 
self, is varied, according to the distance of the city itself from Niag- 
ara FalN. I am credibly informed that in one of the municipalities 
the reduction amounted to over (U) per cent. Detroit parties became 
interested about tAvo years ago for the purpose of securing from the 
Dominion Government authority to export and for the purjiose of 
procui-ing a contract Avith the hydrot^lectric counnission for the 
delivery of ]ioAver in the city of Detroit. 



PRESERVATION OF NIAGARA FALLS. 137 

Mr. Cooper. By reduction, do you nietin as compared Avith the 
power generated by the use of coal? 

Mr. MoNAHAN. I do ; yes, sir. The contract was finally entered into, 
but after very energetic work displayed upon the part of the citizens of 
the city of Detroit who were especially interested. As an indication of 
the probability of this idea becoming reflected in reduced cost of 
electricity to the citizenship of Detroit, the company then operating 
in the city of Detroit used every means within its pov,'er and com- 
mand, both in the nmnicipality of Windsor, in the Ontario Govern- 
ment, and in the Dominion Government itself, to prevent any contract 
being made, or any export permits being granted for the purpose of 
bringing that power from the Dominion of Canada into the city of 
Detroit. However, the hydroelectric poAver commission finally en- 
tered into a contract Avitli our people whereby we were to receive 
poAver from them as soon as Ave could complete the formalities on this 
side of the river. That contract is noAv signed and has been in exist- 
ence for some ])eriod of time, awaiting its completion until the diffi- 
culties involved in the Burton bill had been obA'iated. 

Mr. Foster. Are you getting electricity yet ? 

Mr. MoNAHAN. No, sir. 

One of the provisions of that contract, and upon Avhich by contract 
Ave have already obligated ourselves, is that we shall deposit a half 
million dollars as a guarantee AA^ith the hydroelectric commission, and 
the amount of $250,000, the first amount required under the contract, 
Avas deposited. It was deposited on faith of the treaty. The treaty 
relations Avhich have been in existence betAveen this GoA'ernment and 
the Dominion of Canada, ratified, I believe, in 11)10, and further 
brought into efi'ective existence by the appointment of a connnission 
upon both sides of the riA^er Aviihin the past year. Ivelying upon the 
treaty and believing that the treaty Avas, as we still believe it to be. 
the supreme hiAA- of the land, this contract Avas entered into and 
moneys deposited. 

XoAv, Ave ask at the present time that the limitations contained in 
the Burton Act with reference to restricting the importation of poAver 
into the United States from Canada be removed. We are relying in 
that request not only upon the fact of the treaty itself, Avhich should 
be the supreme hnv of the land, but upon the further fact, as has, 
I think, been satisfactorily demonstrated to the connnittee. that the 
transmission of poAver from the Dominion of Canada into the United 
States is not going to interfere Avith navigation and is not going to 
interfere with the beaut}' of Niagara Falls. AVe are not concerned, 
1 may say, at this time in the least Avith the question of Avhether or 
not on the American side the present restrictions of the Burton Act 
should be lifted. In other Avords, it makes no ditference to usAvhether 
the amount at jiresent alloAved — lo.tiOO cubic feet per second — on the 
American side is restored to 20,000 cubic feet per second, as named 
in the treaty, or not, because our poAver is to come from the Canadian 
.side. 

I^et iue insist, however, that not only in its spirit is the treaty 
broken by the restricting of importation from Canada into the United 
States, but it appears to me to be a fact that Ave are doing something 
Avhich is restrictive ui)()n the best interests of the people of the United 
States who have an opjiort unity to get this poAver cheaper. We liaA'e 
tentatively i)laced ourselves upon lecord in the city of Detroit by 



138 PRESERVATIOX OF NIAGARA FALLS. 

papers filed with (lie common council of that cit}', guaranteeing at 
the very outset of the importation of this power the reduction of the 
present prevailing i-ate. which is fixed by ordinance, by 20 per cent. 

Mr. DiFi-:xL)ERFER. What is that agi-eement you have entered into 
for a rate? 

Mr. MoxAiiAX. The records themselves of the city of Detroit fix 
the rate at which power may be sold in the municipality by the cor- 
porations which are doing business. 

Mr. DiFENDEKFER. The price per horsepower? 

Mr. MoNAHAN. The price per horsepower, according to my recollec- 
tion, is $88 per h.orsepower for power purposes and $113 per horse- 
power for lighting. That is what commonly goes into the hands of 
the companies. Now, as to the absolute accuracy of the figiires that 
I give on that subject, I am not prepared to speak, but it is approxi- 
matel}^ that. At all events our contract is that whatever rate is estab- 
lished in the city of Detroit at the present time, according to the 
records of the city of Detroit for the sale of power by the corporation 
now doing business in the city of Detroit, our figure is to be 20 per 
cent less than that. Is that definite? 

Mr. DiFEXDERFER. Yes. 

Mr. Cooper. If that contract is accepted would the city ever have 
an opportunity to lower the rate? 

Mr. MoNAHAN. Yes. sir; not only that, but it has put those words 
into our tentative arrangement upon which we proposed to be bound, 
that the municipality at any time desiring to obtain the rights of dis- 
tribution belonging to the resident company, which I represent here, 
may purchase whatever rights that company has at a figure to be 
fixed by arbitration, and establish municipal ownership. So that we 
are to an extent under the control of the city itself, and we are per- 
fectly Avilling to be. The point I desire to insist upon is that by 
restricting the importation of this power into the United States an 
injustice is done to the citizens of the United States who ha^-e an 
opportunity to get this poAver. and the injustice is done, furthermore, 
without any right reason for it. because different experts have stated 
here that the importation of this power into the United States is not 
going to interfere either with navigation or Avith the natural beauty 
of Niagara Falls. 

Further than that Congress, of course, as we all know, has abso- 
lutely no jurisdiction over what the Canadians will do Avith the 
36.000 cubic feet 'per second. They can use all or none of it and Ave 
have no authority to say nay. The deA^elopment of the matter during 
the past year in the Dominion Government itself has been such as to 
indicate very clearly, as has alroady been stated by Gen. Bixby before 
this committee, that Avithin a ])eriod of three or four years the C'ana- 
dian GoA'ernment. or rather on the Canadian side, every particle of 
poAA-er which is available under the treaty Avill be used by Canada. 
Now. it appears to me to be an elementary proposition that if some 
of the people of the Ignited States have a chance to be benefited bv 
this poAver at this time, they should be alloAved to receiA-e that benefir 
instead of tlie benefit going to the Canadians themseh^es. They 
have more than Ave have by Avay of right to take from the falls for 
the purpose of generating poAver, and this is the only Avay Ave haA-e 
an opportunity to get some of what some might consider to be Avhat 



PEESERVATION OF NIAGARA FALLS. 139 

the United States might be justiiied in receiving b}^ reason of the 
fact of their connection ^vith the falls themselves. 

Mr. Sharp. Assuming tliat this restriction is removed, is it your 
understanding that you will then be able to get power from the Cana- 
dian side Avithout increasing the limitation at present fixed upon 
-their rights? 

Mr. ]\Ioxaiiax. The question is not very clear to me. 
Mr. Sharp. Suppose that the amount of power now taken by the 
Canadian Power Co. remains where it is, but the restriction as to im- 
porting that power over here is removed, do I understand that the 
city of Detroit could still get power without increasing the amount 
that the Canadians now get i That is. is there any left for them to 
receive ? 

Mr. Moxahax. Xoav? 
Mr. Sharp. Yes, sir. 

Mr. Moxahax. Under present conditions? 
]Mr. Sharp. Yes, sir ; with the restriction off of importation. 
Mr. Moxahax. Xot as fixed in the Burton bill,' according to my 
understunding of the situation. 

Mr. Sharp. Then your contention would be that what you ask is 
not onl}^ that the restriction be removed but also the full limitation 
allowed under the treaty? 

Mr. MoxAiiAX. Exactly, so far as importation is concerned. In 

other words, I go this far 

Mr. FosTKR. You do not understand 

Mr. ^loxAHAX. Perhaps I do not; but I ansAver according to my 
own light. 

?dr. Foster. He wants to know if you ask for anything more than 
the removal of the embargo upon the importation of electricity? 
Mr. MoNAHAX. That is what we ask. 

Mr. Foster. And he wants to know, if the embargo is removed 
and no further authority is given to Canada to take power from the 
falls, whether Canada vrould still have some excess electricity still to 
sell to you ? 

Mr. MoNAHAN. Oh, unquestionabh'. 
Mr. Foster. That is your question ? 
Mr. Sharp. Yes, sir. 

Mr. Monahan. Unquestionably ; there is no doubt about that Avhat- 
ever. In fact, Canada has not used anywhere near the full capacity 
of its limit under the treaty at the present time. 

Mr. FosrER. Mr. Chairi'nan, for Mr. Sharp's benefit I would like 
to ask one question. The amount that Canada can take at the Falls 
is limited by the treaty agreement, just as the amount we can take? 
Mr. MoxAHAX. Exactly. There is no doubt about that Avhatever. 
Now, then, the fact that we can supply our citizenship in the city 
of Detroit with power at a less figure than is noAv fixed, supplies to 
my mind an irrefutable argument, in view of the statements Avith 
regard to not destroying the Falls, and the further statement of our 
not being able to draAv on the Canadians' 36.000 cubic feet per second. 
Avhy the embargo should be remoA^ed and Ave be permitted to proceed 
along the lines of our contracts. 

Some suggestion has been made Avith reference to the impractica- 
bility of bringing poAver that distance. I Avould not for a single 
moment offer my individual opinion in opposition to the opinions 



140 PKESEEVATIOX OF XIAGAEA FALLS. 

given by experts upon this subject, because I do not pretend to be an 
ex].-)ert upon electricity or electrical power or its transmission, but 
the furthest that anyone has gone thus far in that connection is to 
say that it is a possibility but not a probability. On that score our 
own experts, whose decision upon the subject 1 voice, have declared 
that it is entirely jjossible and entireh' feasible; and the best demon-, 
stration of the fact that it is not only possible but feasible is that the 
Canadian Government is read}' now to build its transmission lines 
from London, Ontario, to Windsor, Canada, for the purpose of sup- 
plying- Windsor with light: and if the Canadian govennnent and the 
Canadian electrical experts conversant with this situation are willing 
to do that, then T think we can fairly well take a chance on it. 
Furtheruioiv. ^^e are willing to take our stand upon the decision of 
our experts coupled with the Canadian experts, and if it fails the only 
persons to lose are ourselves, 

Mr. Shakp. To whom would you distribute this power: to what 
class of purchasers or customers? 

Mr. MoxAiiAN. -To all classes. 

Mv. Sharp. Consisting largely of manufacturers? 

Mr. MoNAiiAx. Oh, we should distribute to manufacturers and 
customers generally in the city of Detroit, for lighting purposes in 
residences and hoPiies as Avell as to manufacturing institutions. 

Mr. Sharp. AVould it go to the city itself for lighting? 

Mr. MoxAiiAx. The city has at the present time a municipal light- 
ing plant with which it does its own lighting, but it is entirely within 
the possibility of things that the city might want to take our light at 
the reduced cost at which we could deliver it within the confines of the 
city of Detroit. 

Mr. Sharp. There is a separate company organized, T snj)pose. 
under the ^lichigan laAvs, at least in Detroit, to handle this power 
that yoii get from the Canadian side in the event this goes through? 

Mr. MoxATiAX. Yes. sir: the Federal Electric Light & Power Co. 

This, gentlemen, is very briefly an outline of the situation that I 
desire to suggest and present to your committee. I had in mind to 
discuss the matter rather more extensively than I have presented it. 
but I find upon listening to the subject made by Gen. Bixby and by 
(len. (Jreen and others that many of the features that I thought might 
be necessary to be covered for the purpose of clearness have already 
been fully developed and conclusively covered by them. I will there- 
fore say in conclusion, insisting upon the fact that the treaty should 
be the law of the land and insisting further upon the fact that we 
are only asking to be allowed to take this power Avhile we have a 
chance to get it, Avhile in three or four or five years that chance may 
have passed and our ])eople have been deprived of the chance to use 
the power fnwn the Canadian side. In view of those circumstances, 
it Avould be, in our opinion, incumbent upon the committee to advise 
that the restrictions upon the importation of power at this time be 
removed. Tf thei-e are any further questions, I shall l^e glad to 
answer them. 

Mr. Sharp. How long is this contract for? 

Mr. ]MoxAiiAx. We have the contract during the term of tlie exist- 
ence of the Ontario Power Co. — approximately 30 years. 

Mr. Cooper. Tf this ])OAver goes to Detroit, of course it will go to 
Windsor. Canada, also? 



PRESERVATIOISr OF NIAGARA FALLS. 141 

Mr. MoNAHAN. Yes. 

Mr. Cooper. And when the power reaches that city the munici- 
pality of Windsor will distribute it? 

Mr. MoNAHAN. No, sir: it will distribute it to its own people, but 
it will not distribute it to us. 

Mr. Cooper. That is what I mean. I understand that, but the 
municipality of Windsor and not a corporation formed for the pur- 
pose of disti-ibuting electricity will distribute this power to con- 
sumers in that city of Windsor? 

Mr. MoNAHAx. Yes. sir. 

Mr. Cooper. And at cost ? 

Mr. MoNAHAN. Yes, sir. 

Mr. Cooper. With no profit? 

Mr. MoNAHAN. Yes, sir. 

Mr. Cooper. And therefore at a less cost than it will be distributed 
to consumers in Detroit ? 

Mr. MoNAHAN. Yes, sir. 

Mr. Cooper. So no effort will be made in the city of Detroit to have 
the municipal council enter into a contract by which it could directly 
secure this power ? 

Mr. MoNAHAN. I have no knowledge of anj^ such effort made by 
the council of the city of Detroit. In fact, I can definitely state that 
no effort has been made by the municipal authorities themselves. 

Mr. Cooper. If you do secure the contract with the Ontario people, 
3'ou could not get it anyway ? 

Mr. MoNAHAN, That is true, but at the same time we do not pre- 
clude the city from doing it if they see fit to do it. We saw the situa- 
tion and took advantage of it. If the municipality had seen fit to do 
it, I do not suppose the citizens would have made any effort in that 
regard. 

Mr. Cooper. It is only recently, Mr. Monahan, isn't it, that the 
generation, the insulation, and the carrying of the electric current for 
so long a distance as 220 miles has been considered feasible practically 
and profitably? 

Mr. MoxAiiAN. I think that what you state is in a sense true. 

Mr. Cooper. So the city could not be justly charged with laches 
because it did not get hold of this as quickly as you did? I do not 
mean, of course, that you were not perfectly justified in what you 
did. 

Mr. Monahan. Certainly; I did not intend to charge neglect on 
the part of the authorities of the municipality of Detroit at all. 

Mr. Harrison. Have you given any study to the legal proposition 
as to whether or not Ave have legal jurisdiction over the transmission 
of power from Canada into the United States, or whether or not that 
is a matter coming within the jurisdiction of the States? 

Air. MoNAiiAN. I have given the subject some study and I think 
that, in so far as the importation of current from the Dominion of 
Canada into the United .States would constitute an interference with 
navigation, possibly under that construction the United States might 
have some jurisdiction. 

Mr. Harrison. Over the regulation of rates that would be charged 
by ])0wer companies? 

28305—12 10 



142 PRESERVATION OF NIAGARA FALLS. 

Mr. MoxAHAx. I doubt that very seriously. I would say in 
further answer to the question, a certain bill has been presented by 
Congressman Smith, covering this subject and maintaining that we 
-should be obliged, on the American side, both at Buftalo and at the 
city of Detroit, to sell our power at the same price that it is sold for 
in Canada. I do not intend to waste much time before the committee 
on any such proposition, but merely advert to it. The Canadian 
Government builds its own transmission lines, it sell^ to its own 
people at cost. We can not. by any possibility, compete Avith anv 
such proposition as that announced in that bill. AVe would have to 
sell for more than it sold for in Canada in any event, because we are 
farther distant than Canada, and in the second place, we have got to 
pay to the Dominion commission at the city of Detroit, for poAver, 
10 per cent more than the city of Windsor pays for it. So it is 
absolutely impossible that that can be done; and furthermore, as a 
matter of argument, I would say that the fact that we can not 
possibly do it is no argument against our doing the best we can and 
getting it at a very substantial reduction anyhow, over the price we 
are forced at the present time to pay companies which generate 
electricity from some power other than water power. 

Mr. DiFENDERi'-ER. Mr. Monahan, you have presented this case, in 
my judgment, very clearly, and that has prompted me to ask this 
question : AVhether, in your judgment, it would be feasible to have 
this matter in charge of the Interstate Commerce Commission, and 
charge the Interstate Commerce Commission with the distribution 
and regulation of this electricity. 

Mr. MoNAiiAN. The question is a new one to me as to whether or 
not it would involve further enabling legislation in order to put 
the matter at all under the jurisdiction of the Interstate Commerce 
Commission is a question that I would not care, at the present time, 
to offer an}' opinion upon which would be of any substantial value 
to this committee; but I do say this: That so far as we are con- 
cerned, from a more practical standpoint, if this committee, after 
full deliberation of the subject, comes to the conclusion that it has 
such jurisdiction over the importation of power to the United States 
from Canada, we are perfectly willing to be placed under any rea- 
sonable regulation in that regard, which, in the judgment of this 
eonnnittee. is requisite and desirable in order to preserve the rights 
of the citizenship of our toAvn. 

Mr. DiFJ^NDERFER. The reason I asked that question is this: I am 
a representative of Pennsylvania. A certain portion of our State 
is quite close to where this power is transmitted. NeAv York has 
its commissi(m; Pennsylvania has none: Ohio has no commission, 
nor has Michigan, as I understand it. 

Mr. MoNAHAN. ISIichigan.has a commission. 

Mr. Sharp. Would you claim. Mr. Monahan. later on. after you 
had this contract, that it was a question of vested rights, and that 
therefore Congress had no poAver to intervene, as the riparian holders 
noA\^ claim: that it is a A'ested right that aac can not interfere with? 

Mr. MoNAiiAN. I can not ansAver for the future in that regard. 

Mr. Sharp. AVhat Avould be the temptation? 

Mr. Monahan. I thiidv the tiMuptation Avould he xevy great. 

Mr. Cooper. Your present opinion is that you Avould yield to it? 



PRESERVATION OB^ NIAGARA FALLS. 143 

]\fr. MoxAiiAX. If you are asking me for my individual opinion, and 
what I would do, I think I would yield to that temptation; j'es, sir; 
but I can not tell whether or not the company itself would feel more 
generous. 

Mr. DiFENDERFER. It would be well enough to safeguard it from 
the beginning? 

Mr. MoNAiiAN. On the part of the (lovernment ? 

Mr. DiFEXDERFER. Yes, sir. 

]Mr. MoNAHAx. I think that would be judicious; yes, sir. 

]Mr. DiFEXDERFER. You are very frank in your statements. 

Mr. MoxAHAx. If I should say anything else, I know the commit- 
tee would know I was not representing the facts. If there is not 
anything further, gentlemen, I thank you for your time. 

The Chairmax. AVe will now hear from Mr. Scovell. You can 
proceed, Mr. Scovell. 

STATEMENT OF J. BOARDMAN SCOVELL, OF BUFFALO, N. Y. 

The Chairman. Whom do you represent, Mr. Scovell ? 

Mr. Sco^-ELL. Simply myself, as a citizen of the State of New York 
and a resident of the Niagara frontier. 

Mr. CuRLEY. Do you represent any of the companies that are oper- 
ating in that vicinity ? 

Mr. Scovell. I do not. For nearly six years the Kooseveltian Ke- 
publican policy of standpat has applied to the Niagara pov.er situa- 
tion in the Burton legislation, and therefore I come before you to- 
day with the immense relief that we have a committee with a chair- 
man and majority in favor of a policy by reason of their political 
views, which coincides with that of the State of New York, or the 
officials of the State of New York who are pledged to see the utmost 
made available at the earliest possible time of our natural resources, 

I feel that it is necessary for me to revieAv somewhat the history of 
the position of the State of New York, in the past, no\v, and what 
it should be, with relation to the Niagara Falls park, both from the 
standpoint of scenic beauty and of Niagara Falls power development, 
and these things necessarily touch upon, what has been done on the 
Canadian side. As long ago as 1884 I remember with gTeat pleasure 
having attended the opening of the New York State Park, purchased 
at great expense by the State of New York, and placed under the 
control of a commission in order that the public — not merely the 
]:)ublic of New York State, but of the entire United States and of 
the whole world — might have access to the beauties of Niagara free 
of cost. They removed all things which could be considered an 
eyesore in the district included by the park. Mills, which formerly 
stood on Bath Island, now called Green Island, after Commissioner 
Green, and anything within the territory which tended to affect or 
injure the scenic beauty were removed. This park extends up 
Niagara River to what is called Port Bay, or the entrance to the 
canal of the Hydraulic Power Co. It extends out into the Niagara 
River to the international boundary line. It extends down, follow- 
ing the international boundary line, to the properties at the outlet 
of the Hydraulic PoAver Co.'s canal. New York State itself being the 
riparian owner, as I understand, between the intake and the outlet 
of the Hvdraulic Power Co.'s canal. 



144 PRESERVATION OF NIAGARA FALLS. 

If you will take the time to glance at a little circular Avhich Gen. 
Green has furnished to each member of your committee, on the first 
page you will see a picture of ^siagara Falls. If you have this before 
3'ou it Avill enable you to understand the toiDographj' somewhat bet- 
ter than you otherwise would, the important factor being that the 
State park, which includes the islands which separate the American 
channel from the Horseshoe channel — the line of breakers comes 
below the head of Goat Island, and the State park extends above 
the line of breakers approximately half a mile. On the Canadian 
side you will see, near the crease in the center, one power plant at 
the right hand and another at the left. The one at the right is the 
Canadian and Niagara Falls Power Co.'s plant; the one at the left 
is the Electrical Developrxient Co.'s plant, both up there below the 
line of breakers. It is apparent that it is a physical impossibility 
for the water taken by those two companies in anywise to affect the 
flow of water over the American Fall. The State of New York in 
creating the XeAv York State Reservation of Niagara specifically pro- 
vided in the act that no Avater should be diverted inside the park 
limits for power purposes, and so it came about that no water is 
now diverted by the companies taking ])ower. nor have any rights 
been given under other charters to other companies to take water 
from Niagara River above the Falls, except at points above the New 
York State reservation. 

The Chairman. How many acres are there in the Niagara Park? 

Mr. ScoATELL. I could not estimate it. I should say that up the 
river it varies from a width of 300 feet to perhaps COO feet, lower 
down, including the bed of the stream and the islands in the stream 
to the international boundary line. 

The result has been, however, that on the American side the power 
companies taking Avater for power purposes take it from what is 
known, as you will find in the report here, as the Grass Island Pool. 
Consequently they divert from a point sufficiently far up the river 
and from the two channels in proportion to the relative flow from 
cither. In the report of the engineers. Avhich is before you. you are 
informed that there are practically 10,000 cubic feet per second going 
over the American Falls, and the balance of 205,000 cubic feet per 
second is going over the Horseshoe Falls. 

Mr. Sharp. How much over the American Falls, did you say? 

Mr. ScovKLL. Ten thousand cubic feet per second. 

Three years after we opened our park on the American side the 
Ontario government, in celebration of Her Majesty's Jubilee, created 
on the Canadian side a park system, opened it to the public, and gave 
to a commission appointed by it supreme power over that park. I 
was employed as counsel in the case of the Queen v. Colt, in which 
were developed the rights of the park commission with respect to 
the wliirlpool and the rights of the Dominion Government of Canada, 
as compared Avith those of the Ontario government, to control the 
bank of Niagara and the waters, it being determined in those pro- 
ceedings that they lay in the Province of Ontario. After the crea- 
tion of these State parks — the State park on the American and the 
Provincial park on the Canadian side — there arose an agitation for 
the harnessing of Niagara, and the State of New York granted in 
the neighborhood of 12 different chartei^s to take Avater from Niagara, 
all of Avhich have been repealed Avith the exception of 3 — 1, the 



PRESERVATION OF NIAGARA FALLS. l45 

Hj^draiilic Power Co.'s rigflits are not by charter from the State, they 
being an organization under the stock corporation law, whose rights 
as riparian owners have been given by legishitive act rather than by 
charter rights from the State. The first of these charters was granted 
to citizens of the city of Niagara Falls in the year 1886. And the 
compan}^ was known as the Niagara River Hydraulic Power, Tunnel, 
& Sewer Co., and by several acts mandatory of that we now have 
under that original act the Niagara Falls PoAver Co., the pioneer 
company in the development of electric power from Niagara waters, 
the Hj^draulic Power Co. having been there for many years and 
having diverted water from Niagara River, not for the purpose of 
generating power or for the production of hydraulic power, their 
rights to the production of electric power having followed those of 
the Niagara Falls Power Co. 

In the 3^ear 1891 certain residents of the village of Lewiston 
acquired a charter known as the Niagara County Irrigation & AVater 
Supply Co. for the purpose of bringing water by a public waterway 
from the upper river to the lower river in order to supply pure water 
to villages and in order to generate power. In 1894, three years 
later, residents of the city of Lockport applied to the legislature and 
acquired a charter to take water from Niagara River, via Lockport 
to Lake Ontario, and that charter is still unrepealed, but they did 
not comply with the requirements with respect to canal construction 
and that charter is now the Niagara, Lockport & Ontario Power Co., 
which distributes for the Ontario Power Co. of Canada through 
western New York and which Gen. Green represents before you as 
its president. 

It was the policy of the State at that time to grant the rights for 
the production of power because of the agitation for the harnessing 
if Niagara. This Avas accomplished, as I said, by the Niagara Falls 
Power Co.. the initial installation being something like 15,000 horse- 
power, their charter rights being for 200.000 horsepoAver, 100,000 by 
a tunnel, and a like amount, if they subsequently so decided, by 
another tunnel. 

Later still, in 1896, the hydraulic company obtained from the State 
of New York, by a vote, two-tliirds being present and voting, con- 
firmation of its right to take Avater. All of the other charters, 
granted to all of the other companies, had been granted, three-fifths 
l>eing present. In 1895 I was retained by the Niagara Irrigation & 
Water Supply Co., and for 11 years Avas its attorney. I wish to cor- 
rect Mr. Bowen's assertion of yesterday that I am its attorney ; I was 
its attorney. Since the 1st of July, after the passage of the Burton 
bill — 9th of June. 1906 — I have not represented that company, but 
for 11| years I did represent it. and thereby became familiar Avith 
the conditions at Niagara. My home being at LeAviston, on the 
Niagara, and my laAv practice in Buffalo, I have become familiar and 
kept so as to the conditions surrounding the development. Prior to 
the enactment of the Burton bill, except for the restriction of 200.000 
horsepoAver for the Niagara Falls Power Co. and except for the re- 
striction of the size of the canal for the hydraulic company, which 
made it possible for them to take 95,000 cubic feet, there Avas no re- 
striction, both the Lockjyort and the Lewiston companies having no 
restriction placed upon the amount they might take. When the 
agitation came for the preservation of the Falls all the outstanding 



146 PEESERVATIOX OF NIAGARA FALLS. 

charters except those mentioned were canceled by act of the legishi- 
ture. Negotiations for the construction of the canal from the upper 
to the lower river had been comi)leted to the extent of the under- 
writing of the securities in March. 1906, and about $325,000 had been 
expended at that time. The passage of the Burton bill held up, and 
is still holding up, any ])Ossible development under that charter. 
You will find the hearing before the Kivers and Harbors Couimittee 
on the Burton bill in 190G, pages 15 to 45. the position of that com- 
mittee at that time. 

\Mien the Burton bill was passed it recited its purposes as they 
have been brought before you at this session and the several condi- 
tions as to the navigation of the river; its effect on the (ireat Lakes; 
its effect upon the boinidary and upon the scenic beauty have all been 
fully reported upon to you in the report of the War Department, as 
was required by the terms of the act itself. But there are certain 
things in connection with that act which I feel it is important to 
call to your attention, and one of the first is this : That in the grant of 
the right to take 15,000 cubic feet of water from Niagara Eiver for 
power purposes to the companies then actually producing power, that 
was conditioned in two different ways. The first was, '' But permits 
for diversion shall be issued only to corporations as aforesaid and 
only to amounts now actually in tise or contracted to be used in fac- 
tories the buildings for which are now in process of construction." 
That restriction made it impossible, until there should be a change in 
the Burton law, for the use in the United States of any more power 
generated on the American side than was then either actually pro- 
duced or under contract. So that from that time until now, if that 
was truly carried out at that time, there woidd have l)een no oppor- 
tunity for an industry to come to Niagara to purchase Niagara Falls 
power as a nevN- proposition. It was only power that was previously 
contracted for Avhich coidd be generated. They went on with their 
power development for the purpose of completing it and fulfilling 
the contracts previously made. We have, therefore, been limited to 
the importation of power from the Canadian side under the permits 
gi'anted by the Secretary of War up to 100,000 horsepoAver for the 
development of new industries. 

There is another factor, however, of the Burton bill of still greater 
importance, and that was this additional limitation that we heard 
nothing about in all the discussion here: 

No revocable permits shall be issuetl by the said Secretary under the i»ro- 
visions hereafter set forth for the diversions of additional auionnts of water 
from said river or its tributaries until the approximate amount for which i>ei'- 
mits may be issued as above, to wit. 10.200 cubic feet per second, shall for a 
p<.>riod of not less than six months have been diverted from the waters of said 
river or its tributaries. 

There was no intention at the time of the passage of the Bin-ton bill 
to stop the development of power froui Niagara water. An oppor- 
tunity was given to the couipanies then actually producing i)ower to 
actually divert 10,600 cubic feet, to have that condition continue for 
a period of six months and then the Secretary, having determined 
by his observations Avhether or not the scenic beauty of Niagara had 
been damaged, could go further and grant additional i)ermits either 
to those couipanies or to any other companies which had the right to 



TEESEKVATIOi^ OF JS'IAGAEA FALLS. 147 

take AvattT from Niagara Kiver for power purposes under authority 
given to them previously by the State of Xew York. 

]Mr. CooPKK. That seems to me one of the most striking things that 
lias been disclosed in this whole discussion and one of the most vitally 
important. Now, let us see if I interpret that correctly. If they did 
not use up to the maxinuim what the}^ were allowed under that act, 
there was no way for the Secretary of War to issue a permit to 
anybody else, was there? 

Mr. ScovELL. There Avas not. 

Mr. Cooper. And all they had to do to block him was to go not 
quite up to the maximum? 

Mr. ScovELL. They have not A^et reached the maximum, and nearly 
six years have elapsed, although at that time the whole output up 
to that maximum must necessarily have been contracted, and they 
have not made other contracts. 

Mr. Cooper. Exactly ; that is Avhy yesterday I thought that there 
was something the matter with the discussion about the failure to 
issue permits. If they did not use all they Avere entitled to use under 
that permit, the maximum amount for six months 

Mr. ScoA'ELL. That Avas on the Canadian side. 

Mr. Cooper. Well, say on this side — and the Secretary of War, 
then, Avould have no opportunity to see Avhat the effect on the Falls 
Avas, up to that maximum, would he? 

Mr. ScovELL. No. 

Mr. Cooper. And therefore he could not issue any new permit? 

Mr. ScovELL. No ; and he has issued no neAv permits. 

Mr. Cooper. He could not. All they had to do to stop it Avas to not 
use the amount they Avere entitled to use. 

^Ir. Watrous. Do you think there is a maximum clause that applies 
to the Canadian side? 

Mr. ScovELL. I do not knoAv anything about that; I could not say. 

Suffice it to say, under the provision of the Burton Act up to such 
time as a treaty should be reached there was no reason Avhy up to that 
time additional grants of poAver might not haA'e been made. 

Mr. Sharp. Hoav much Avas that of the maximum amounts? 

Mr. ScovELL. I could not say exactly; it is in the reports here. It 
is very near. Do you knoAv, ISir. BroAvn? 

Mr. Broavx. I can not say exactly. We have been using all of our 
water. 

Mr. DiFEXDERFER. Ma^ recoUectiou is it is 13,800 cubic feet per 
second, and they are permitted to use a total of 15,600. My recollec- 
tion is it is 13,800 at the present time. 

^Ir. Broavx. May I ask a question? If the maximum in any one 
second Avere 15,600, we Avill say, then as a nuitter of practical opera- 
tion, if a company or combined companies were prohibited from 
using as a maxinuun in any one second a quantity beA'ond 15,600, as 
a matter of practical operati(m could you expect that for a period of 
six months you Avould find an operation that would average anything 
except something less than 15,600? 

jSIr. ScovELL. I think the interpretation would be put on that, at 
the rate of — such as you desire to put into the ncAv act. 

Mr. Broavx. AVe can arrange the ncAv act all right. But is it not a 
fact that tlie engineers have construed the present act to be the maxi- 
mum in anv one second? 



148 PRESERVATION OF NIAGARA FALLS. 

Mr. ScovELL. 1 think rhat is true, Mr. Brown, but at the same time 
there remains undeveloped water of the hydraulic company under 
the terms of their contract. 

]\Ir. DiFENDERFER. This difference remains, between 13,800 and 
15,600 ? 

Mr. ScovELL. That is the difference. There has never come a time 
when they have had 15,600 cubic feet of water diverted for the genera- 
tion of electric power for any period of time sufficient to enable the 
provisions of that portion of the act to be applied and their company 
to appl}' for more power or any other companj' to apply to the Secre- 
tary of War for poAver. 

The purpose of the act itself as recited in the fourth paraaraph 
was that the President of the United States be requested to open 
negotiations with the Government of Great Britain for the purpose 
of efl'ectually providing for such regulation of the water of Niagara 
Elver and its tributaries as will preserve the scenic beauty of that 
river, and it was because of that provision in section 4 that the 
company I then represented did not attempt to contest the constitu- 
tionality of the Burton Act. It would take longer to contest that 
successfully than it would to negotiate a treat}', and a treaty being 
the supreme law of the land we would be bound by it, and so our 
efforts were directed toward the wording of the treaty, and, as I 
understand, the two companies' efforts which were taking water from 
Niagara River, instead of being directed toward the testing of the 
Burton Act, were also directed toward the wording of the treaty, 
there never having been any test of the constitu.tionality of the Bur- 
ton Act. It Avas continued from time to time until the present time, 
and it will continu.e until the 1st of March next. Personally I 
think the United States Supreme Court's decisions, by reason of the 
wording of the title, would probabl}^ result in the upholding of the 
act, although the intention was manifestly without tlie scope of the 
power of Congress. 

Mr. Sharp. Did these two companies then frame up this treaty? 

Mr. ScovEMi. I am reaching that. The next paragraph, however, 
of the Bui-ton bill must be considered, and that is section 5: '"The 
provisions of this act shall remain in force for three years from and 
after the date of its passage '' — and that has been extended — " at the 
expiration of which time all permits granted hereunder by the Secre- 
tary of War shall terminate unless sooner revoked by the Secretary of 
War, and nothing herein contained shall be held to confirm, or estab- 
lish, any rights heretofore exercised.'' 

Because of the continuation of that act in that form, the Presi- 
dent of the United States said to me that if Congress should ad- 
journ — this was last spring — without having extended the Burton 
Act he would by P^xecutive order permit the companies now taking 
water to continue to take water pending the action of Congress. So 
you can not allow the Burton bill to die and do nothing. 

The wording of the fifth paragraph of the treaty itself says that 
the United States may authorize and permit the diversion. The 
United States in authorizing and permitting does so under an act 
of Congress, and until there is congressional action there is no right 
to divert, and the present diversi(m exists only by reason of the ex- 
istence of the Burton bill. With the death of that all permits are 



PRESERVATION OF NIAGARA FALLS. 149 

revoked that are outstanding. It is therefore necessary that some 
legislation be had between now and the 1st day of March, either an- 
thorizing the continuance of the present conditions or determining 
on a policy and following that, and I am here V)efore you to-day, more 
particularly for the purpose of making some suggestions along the 
line of such legislation as your committee should see is passed in 
Congress under the fifth clause of the treaty. 

The Chairman. In that connection, suppose the Burton law had 
not been extended by resolution of Congress what would be the 
consequence ? 

Mr. Scov'ELL. The terms of the treaty specifically provided in sec- 
tion 5, " so long as this treaty shall remain in force, no diversion of 
the waters of the Niagara Eiver above the Falls from the natural 
course of the stream shall lie permitted except for the purposes and 
to the extent hereinafter provided." The treaty contained an abso- 
lute prohibition, and after the Burton bill expired, and after the per- 
mits threby ipso facto were revoked, the treaty coming into effect, 
no one had a right to take water from the river pending congres- 
sional action, except as the President stated. 

The Chairman. The Burton law expired last June, did it not? 

Mr. ScovELL. It did. 

The CHAiR3k[AN. And Congress took no action regarding its ex- 
tension until last August? 

Mr. ScovELL. Quite true. 

The Chairman. Had all these permits expired during that time? 

Mr. ScovELL. Except as they were renewed by the continuation of 
the Burton bill. 

Mr. Garner. Let me get your cfmclusioiis, if I may. Your j)osi- 
tion is that if nothing is done until the 1st of March, the permits will 
all be revoked? 

Mr. ScovELL. It is so provided in the Burt(m Act itself. 

Mr. Garner. That applies to the Canadian as well as the Ameri- 
can permits? 

Mr. Scovell. Permits to import. 

Mr. Garner. Does that apply to American permits to take water 
from the Niagara River? 

Mr. Scovell. It does. 

Mr. Garner. Now, you say that in case Congress did not take 
any action and the Burton law expired, the President would issue 
an edict? 

Mr. Scovell. To hold things in statu quo until Congress acted. 

Mr. Garner. Has the President that power under our Constitu- 
tion? 

Mr. Scovell. I do not think so. Imt I think that is the wise way 
to do it. 

Mr. Garner. If that is true we might just as well adjourn and 
let the President settle the matters to suit his convenience. 

The Chairman. Is it your contention, as a legal proposition, that 
the rights under these permits nil expired last June when the Bur- 
ton Act lapsed? 

Mr. Scovell. At that time no one wished to contest the question; 
no one wished to stop the power. There was too much at stake. 

Mr. Green. The Burton law expired on the 21)th of June. We 
heard nothing from Washington and we went on with our business 



150 PRESEEVATION OF NIAGAEA FALLS. 

as usual. On the 21st or 2'2d of August the Burton bill was revived 
to the 1st of March. A few days after we received from the Secre- 
tary of War, without application, new permits reading exactly like 
the old ones. 

Mr. Cuoi'EK. General, that would imply that the department ex- 
tended the law just as -Mr. Scovell said; new permits were issued? 

Mr. Green. When the Burton law was revived. 

Mr. Scovell. There was nothing done, because in that case there 
was no question raised. 
'Mr. Cooper. Exactly. 

Mr. Greex. I simply bring this matter before you as a conunitte 
to emphasize the importance of definite action on your part rather 
than allow things to go on and let the treaty be the supreme law of 
the land. 

Maj. Ladue. Mr. Chairman. T can add a little to what Mr. Green 
has just said, \^^len the Burton Act expired on June 29 we notified 
the officer in charge of the lake survey to stop his supervision of the 
operati(ms of the power companies under their permits. Up until 
the 29th of June we had hoped that Congress would take some 
action, but no action having been taken we were not entirely clear in 
our own minds as to what we shoidd do next. We proceeded to take 
the question under advisement to consider what should be our next 
step; the Burton x\ct being apparently dead, and the permits 
granted under its provisions being apparently dead. Before we 
had resolved upon the proper course to take, Mr. Chairman, Con- 
gress unexpectedly reenacted the Burton Act, whereupon we recom- 
mended to the Secretary of War that, the act being restored, the 
permits be innnediately reissued under the old terms, to continue as 
long as the restored or revived Burton Act continued in force; that 
is. until the 1st of March. 

Mr. Cooper. Major, did you consult, Avhen the Burton Act expired, 
with any legal officer as to the effect that had on the permits? Or 
did you take it for granted that ipso facto they expired also? 

Maj. Ladue. I presume the Secretary of War consulted with the 
Judge Advocate General: T think he did, sir. Of course, the chief 
of engineers did not take this action u])on his oAvn responsibility. 
He recommended it to the Secretary of War. 

Mr. Cooper. And you consulted in your bureau with the Judge 
Advocate General? 

Maj. Ladue. I think the Secretary of War consulted with him. 

Mr. Cooper. The Secretary of War: and then you were in- 
formed 

Maj. Tvadi E. That our recommendation Avas approved. 

Mr! Cooper (c(mtinuing). That when the Burton Act expired 
the permits expired also, and so you issued new ]:)ermits when the 
Burton was revived? 

Maj. Ladi E. Thas was. essentiallv. the action taken. 

Mr! Cooper. You looked u]i()n the law as ]\fr. Scovell has here 
stated it? 

Maj. Ladue. AVe understood it so. 

Mr. Scovell. During tlie time that the treaty was under considera- 
tion, at the suggestion of the then mayor of Buffalo T came to Wash- 
ing in oi^position to the treaty, and I also was in comnnmication 
with the Ontai'io Government in opposition to the treaty. The at- 



PRESERVATION OF NIAGARA FALLS. 151 

titude of the cit_y of Buffalo at that time being one in which they de- 
sired an opportunity to get power at better rates. They were caUed 
" the electric city." but we are not getting the advantage of being 
the electric city b}- reason of the fact that the power was sold at 
Niagara Falls by the Niagara Falls Power Co., to the Cataract & 
Conduit Co., which transmitted it from Niagara Falls to Buffalo^ 
and sold it at Buffalo to the Buffalo General Electric Co., which 
distributed it from the conduits to the city, and there being neces- 
sarily three profits, of course the cost to the consumer in Buffalo 
was somewhat higher than Buffalo has expected. 

The opposition to the treaty was twofold, but the principle was 
that the limitation of 20,000 cubic feet on the American side was too 
small. IIow that was reached has been explained to you here by 
reason of the reports of the engineers as to the amounts allowable to 
the full capacity of the plants of the two companies then actual !}• 
producing power. At the hearing a year ago this month I made the 
assertion that the Niagara Falls Power Co. wanted 1,400 cubic feet 
more in order to complete its' planned 100,000 horsepower develop- 
ment, and that the Schoelkopf ( ? ) Co. wanted 3,000 additional feet 
in order to bring it from 6,500 to 9,500, the amount of water which a 
channel the size allowed by the act permitting it to take power would 
carry ; and that those facts determined wlw the fact that 4,400 addi- 
tional cubic feet of water was increased on the xVmerican side under 
the treaty. That was not admitted at that time, and I was therefore 
surprised and pleased that my guess, if such it was, of a year ago 
was repeated yesterday by my friend Mr. Brown. The additional 
4.400 can be developed in that way between the two existing com- 
panies at Niagara Falls, and a question of riparian rights as between 
them has evidently been reached. The Niagara Falls Power Co. 
develops from 136 to 138 feet of head, obtaining approximately 10 
horsepower per cubic foot. They have installed two wheel pits in 
each of which they have genei'ators for the generation of 5,000 horse- 
power. They have installed 21 of such generators, making a total of 
105,000 horsepower, one generator being held in reserve, as we are 
informed, for the purpose of switching in in case of trouble. The 
plant is considered and is called a 100,000 horsepower plant, but on 
the basis of 10,000 horsepower per cubic foot being produced and the 
limitation contained in the Burton Act to get the full capacity, 
1,400 cubic feet more are necessary. 

Mr. DiFENDERFER. If that 4,400 cubic feet a second were granted, 
would Buft'alo receive any benefit in rates? 

Mr. ScovELL. From that particular compan}'? 

]Mr. DiFEXDEFER. YcS. 

Air. ScovELL. I think not. unless some regulations were passed 
here or at Albany in regard to it. 

Mr. Ci'RLEY. You say you were engaged by tiie city of Buft'alo? 

Mr. ScovELL. I say I was requested to come by the mayor. 

Mr. Ctrley. And you also communicated with the authorities 
of Ontario? 

Mr. ScovELL. Yes. 

Mr. CcRLEY. Can you give the committee some comparison of 
prices to consumers at both places — Canada and the United States? 

Mr. ScovET.L. Yes; I will reach that presentl}^ 



152 PRESERVATION OF NIAGARA FALLS. 

You will find from the report of the engineers that the Hy- 
draulic Power Co.. which was allotted 0.500 cubic feet of Neater 
under the Burton Act. if its canal is used to its full capacity can 
take 9,500, which is 3,000 more than the company now has author- 
ity to take, and that 3.000 at 1.400 makes the "^4,400 which is in 
dispute at this time. That 4,400 was the increase given over the 
Burton bill by the terms of the treaty when the treaty was drafted 
between the two countries, apparently shutting off any other com- 
panies than the companies then producing power. That conclu- 
sion was fortified, in my opinion, when after the ratification of the 
treaty the so-called Alexander bill was introduced, definitel}' giving 
this 4,400 additional cubic feet of water to the companies then 
actuall}' producing power. 

Mr. Sharp. If these two companies did participate in putting 
the provision in the treaty, why shouldn't thej' shut off the power? 

Mr. ScovELL. Certainly; why shouldn't they? 

We are coming to the position the State of New York should take 
at the present time. Of course, those things were comparatively 
easy of accomplishment at that time, I think. The Ontario Gov- 
ernment wanted power to distribute in Ontario by its hydroelec- 
tric power commission. It was difficult to obtain it. The Niagara 
Falls Co. had a capital cost of $160 per horsepower, and was in 
no position to compete with imported power, which could be sold, 
and is sold now, at $9.40, as you were informed by Gen. Green. It 
is- therefore important from the standpoint of an American com- 
pany that a treaty should contain new provisions in regard to the 
importation of power, and I came here, as I said, at the request of 
the mayor of Buffalo to insist upon the insertion into the treaty 
of some provisions allowing power to be imported into the United 
States from Canada Avithout question. The assurance was finally 
given by the Dominion Government gind the Ontario Government 
that an export dutj" would be imposed upon power to be shipped 
out of Canada unless power was sold in Canada to the hydroelectric 
power commission at reasonable rates. Their opposition, there- 
fore, was withdrawn to the treaty, and so we have a treaty to-day 
in which there are no regulations as to the importation of power, 
we being limited as it stands to-day to the pledge of the Gov- 
ernment of Canada to the power companies of permission to export 
half of their power to the United States, which, however, Canada 
having a parliamentary form of government, is subject to change. 

I was connected with a company which exported natural gas from 
Canada to supply the city of Buffalo. The Dominion Government 
required us to pipe from our field to Niagara Falls, Ontario, at an 
expense of an assessment of 150 per cent, which woukl be considered 
confiscatory here. And after that had continued for two years 
absolutely, it forbade us fulfilling our contracts in the city of Buf- 
falo and required us to sell it all in Canada, which is one of the 
advantages Avhich a government under parliamentary law, which 
is not obliged to recognize the obligation of contracts, has over a 
constitutional government. 

Mr. LiNTTncr.M. Does Buffalo get gas from Canada now? 

Mr. ScovELL. No. 

Mr. LiNTHicuM. How long has that l)een? 



PRESERVATION OF NIAGARA FALLS. 153 

Mr. ScovELL. Two years. 

Tlie power company, ixs was told you day before yesterday by Mr. 
"Wieks, has ne^■er needed funds. It has been in the position to in- 
stall the best that could be had. It has the best engineers and the 
best all along the line. Its financial position — with John Jacob 
Astor and B. O. Mills on its board — gave it a financial position 
which is unquestioned. Its political position was assured with Mr.. 
Mills, son-in-law of ]Mr. Ueid, and with Senator Depew 

]Mr. Cooper. Ambassador Reid? 

Mr. ScovELL. Yes; he A^as son-in-law of the then president. The 
political position of the company and the financial position of the 
company made it possible for it to have as strong a position as 
Niagara Falls itself has in hydraulic [laughter], so that the treaty 
as we have it limited the United States to 20,000 cubic feet per 
second. We have got the 20,000 cubic feet, and there are no strings 
on it. The question now comes, what shall we do with it? The 
Alexander bill was introduced to provide that it should be given to 
these two old companies to be divided as they saw fit — and their 
riparian interests having been adjusted, they saw fit. [Laughter.] 
The introduction of the Alexander bill resulted in Mr. Alexander's 
retirement and Mr. Smith's coming from Buffalo to Washington 
in his place, and you have before 3^ou a bill introduced in Congress 
by Mr. Smith at the present time to consider. 

Mr. Foster. I always thought that Buffalo supposed Mr. Smith 
was a superior man to Mr. Alexander. [Laughter.] 

The Chairman. You would not have us infer that the introduc- 
tion of a bill by Mr. Smith will keep him home? 

Mr. ScovELL. I do not think it will keep him home. It will help 
some. The hearing on the so-called Alexander bill w^as fixed for 
the 6th of January of last yesLV. I had previously seen our newly 
elected go\ernor and on the same day as his message went to the 
legislature this resolution was introduced, and before they adjourned 
for the appointment of committees it was unanimously passed by 
both houses: 

F.y Senator Burton: Tliat the clerk of the senate be directed to coninnuu- 
cate with the proper committee of the house of representatives, through its 
chairman, and request that no final action be taken by its committee on the 
proposed bill now before it known as the Alexander electric power bill, until 
the New Yoi-k State anthorilies liave an opportunity to examine its provisions 
and to be heard thereon. 

On January 4 that was adopted in the senate. 

That was on the 4th day of January. On the 5th I obtained a 
certified copy of that resolution, and on the 6th I appeared before 
the committee on Rivers and Harbors, which was considering the 
Alexander bill, but deferred action as requested by the legislature 
at that hearing in relation to the constitution. Suffice it to say 
that the committee did not act at that time with respect to the 
Alexander bill, but deferred action as requested by the legislature 
of the State of XeAv York. 

^fr. Foster. Do you now favor the Smith bill ? 

Mr. ScovELL. I won't say as to that as yet. 

Mr. Foster. I thought not. 

Mr. ScovELL. On February 17 Gov. John A. Dix sent to the Legis- 
lature of the State of New York a communication with respect to 



154 PEESERVATION OF >:iAGARA FALLS. 

both the Niagara Falls matter and the Lono; Soo. I had drafted 
a joint resolution to make that eft'ective. and on February' 20. three 
days later, the senate unanimously adopted the joint resolution in 
question. The followinjr day. Fel)ruary 21. the same resolution was 
adopted by a vote of 82 to 47. 

Mr. Cooper. That was in the other house — the assembly? 

Mr. ScovELL. In the assembly. It states so fully the position which 
the State of New York wished to take with respect to the Alexander 
biH, which disposed of the 4.400 cubic feet of water, that I believe 
your committee should understand the position of the legislature 
at that time with respect to that pending bill as an assistance 
to you with respect to the drafting of suitable legislation at this time. 

By Senator Burton : Whereas the Coumiittee ou Rivers ;nid Harbors of 
the House of nepresoiitatives of the I'nited States, in coniiiliiince with the 
request contained in a joint resolution adopted in Assembly of the State of 
New York. February 21. 1911. has deferred tinal action on the proposed bill 
before it known as the Alexander Electric Power bill, j^ending an examination 
into its provisions by the authorities of the State of New York, and 

Whereas a coniniunication has this day been received from His Excellency 
the Governor of the State of New Y'ork in the diversion of water from the 
Niagara River, which snirsestions should be embodied in the form of amend- 
ments to the said bill, 

Resolveil. That the assenibly agree that the legislators respectively request 
the representatives to use their best endeavors at the present session to effect 
the amendment of .said bill. 

First. Which are now actually producing power from the waters of said 
river or its tributaries be eliminated. 

That was to prevent the restriction contained in the Alexander 
bill. Avhereby it ga^•e it to those companies only. In other words, 
to use the words of my friend. Mr. Brown, the legislature desired that 
the act of Congress should be more elastic. [Laughter.] 

Second. So that any permits hereafter granted for the diversion of water 
from the said river or its tributaries in addition to this — 15,G(X) already recog- 
nizetl or i.ssued — shall be granted and issued by the governor, having in mind 
especially such individuals, companies, and corporations as shall be able to 
satisfy him of ability to develop the maximum quantity of electrical iiower from 
such limited additional diversion of water. 

If you will allow me to divert right there, we all know Mr. . 

of the State .senate, and when he was advocating that provision he 
said : 

There is only one argument against tliat provision, and that is ready money, 
cash in hand. 

And when the^' voted on it they got unanimous action as a neces- 
sarj' result. 

And that such permits shall be issued for such limited i»eriods of time and 
upon such compensation to the State of New Yoi'k as shall be reasonable and 
just. 

That second paragraph announces the policy of the State of New 
York with respect to those additional 4,400 cubic feet. 

Third. So that the limitation contained in this act, entitled "An act for the 
control and regulation of the waters of the Niagara River " — that is. the 

Burton bill— where by not to exceed was permitted to be granted to any 

one individual or corporation, shall be restricted in said bill and continued in 
effect thereunder. 

The limitation which allowed only cubic feet of water to go 

to the Niagara Falls Power Co., developed under only 136 feet of 



PKESEKVATION OF XIAGAKA FALLS. 155 

head, was taken out of the Alexander bill, and the State of Xew 
York says: '" AVe want that i)ut back in, because otherwise a company 
nii^ht get some additional water which would not be used under the 
most elective head.*" 

Fourth. So tbat no privilege arising under any perniil heretofore or hereafter 
granted shall be without the approval of the iSecretary of War, and no such 
ap|)roval shall be given until consent thereto by the State of New York shall 
have tirst been obtained. 

The object of that provision was to prevent the possibility of a 
monopoly by dealing!: in i)ernuts. 

Fifth. So that no electric itower produced by hydraulic power used und<'r any 
permit granted under this bill shall be transndtted to any point without the 
State of New York, except with the consent of said State. 

Sixth. So that the granting of permits shall not be deemed to be required to 
cover the use of the surplus water of the Erie Canal for hydraulic power pur- 
poses, but the disposition of such waters shall be and remain tmder the sole 
jurisdiction of the State of New Y'ork. 

That is due to the fact that at the city of Lockport the Secretary 
of War has issued a permit for the takino; of nOO cubic feet of water, 
which is drawn from the Niagara Eiver, to Lockport through the 
Erie Canal. It is Erie Canal water which by the terms of the treaty 
is not subject to its provisions. It is used at Lockport between the 
upper level of the locks and the lower lever of the locks, and the 
State of Xew York believes that that oOO cubic feet of water should 
not be included in the limitation of 20.000 cubic feet per second, or 
in the minimum limitation of 4,400 cubic feet per second, but that 
there should be 4,900 cubic feet per second available. 

On the Canadian side of the Niagara RiA'er and connecting Lake 
Erie with Lake Ontario is the so-called Welland Canal, which on 
two diiferent occasions since its original construction has been 
changed in its line of route, passing through the old city of St. Cath- 
erines, another through Merritton, and another through Thorold. 
The waters are taken from Lake Erie, except such as are needed for 
navigation, and to that extent depletes the floAv through Niagara 
River, but you will notice that in the wording of tiie treaty no refer- 
ence is made to the diversion of water from Lake Erie. It is only 
diversion of water from Niagara River. 

Along the line of the old canal 1,000 cubic feet of water is used 

for power purposes. At Falls (me of the finest little electric 

])owers in Canada is installed, j^t the several levels of the old 
canals the Avater is used for the generation of poAver to light the city 
of St. Catherines, to run the carbide plant — I do not see the gentle- 
man here Avho spoke yesterday for the Ihiion Carbide Co. — but to 
furnish the electricity for Mr. Thomas L. AVilson's carbide plant in 
Canada. Mr. AVilson has a plant at Merritton, and he uses two levels 
of the Welland Canal poAver for the generation of electric poAver 
for his use. The State of New York feels that it is quite as much 
entitled to surplus canal waters as the Province of Ontario or th(» 
Dominion of Canada, and it has taken the position that in dealing 
Avith this matter Congress should recognize the right of the State 
to dominate its own canal and its own surplus Avaters. You therefore 
ha\'e in that joint resolution the substance of the position taken 
bv the legislature of the State of New York as recentlv as Februaiv 
last. 



156 PBESERVATION OF NIAGARA FALLS. 

Mr. Sharp. Are you going, in the course of your remarks later on 
to suggest something 

Mr. ScovELL. Yes; unless you ask me to stop before that. 

Mr. Sharp. I was going to ask you to do it now, if you were not 
going to do it later- 
Mr. Cooper. You were going to say something also about the 
relative costs. 

Mr. ScovELL. Congressman Alexander telegraphed me on "\^''a.sh- 
ington's Birthday, the day after the adoption of this joint resolution, 
that it was then too late in the session to accomplish anything. I 
came to Washington and had a conference with him. I brought a 
letter to Senator Burton from the governor, had a conference Avith 
Mr. Hoot, ])laced in his hands the bill which would embody the 
amendnionls suggested by the legislature of the State of Xew York, 
conferred with the Congressman from my own district here, and 
found that the opinion of all was that it was too late to do anything 
to extend the Burton bill. I felt that it was desirable that some- 
thing be done if we could, and I saAv the ranking Democratic mem- 
ber of the Rivers and Harbors Committee, Mr. Sparkman, of Florida, 
and he arranged for me to meet the President. Of course. Mr. Taft, 
as Secretary of War, originally gi'unted the several permits under 
the Burton act which are in existence. He held hearings at Niagara 
Falls and is absoluteh'^ the most familiar with the situation of any 
one of the officials in the executive department of the Government. 
So that in going to him in regard to the matter I knew that what I 
had to say would be fully understood and appreciated at once, and 
as the result of my conference with him he made an appointment 
for Senator Root, Senator Burton, and Mr. Alexander to meet me 
at the President's office on the following ^Monday. That da}' the 
attitude of Senator Burton in favor of Dreserving the scenic beauty 
by holding us doAvn to 15,G00 cubic feet of water per second on the 
ximerican side and not allowing power to be imported from Canada 
Avas still the block in the Avay, and Ave finally agreed to adjourn until 
5 o'clock Avhen Ave Avould submit in Avriting statements to each other 
as to Avhat Ave Avanted. 

Mr. Shap.p. What Avcre Mi. P)urt()n's reasons for opposing the im- 
portati<m of power? 

Mr. ScoA'ELL. That it was a method v.hich should be taken b}' the 
XTnited States to pre\ent Canada fi-om proceeding Avith further de- 
velopment of poAver on the Canadian side and thereby further deplet- 
ing the flow of water over the Falls. 

Mr. Garner. On the theory that Canada could not use its oAvn 
power ? 

Mr. ScovEix. On the theory that Canada could not use its oAvn 
power at home, and that if Ave kept it from coming over here Ave 
Avould continue to save the Ix'auty of the falls for a short time any- 
way. The Senator from Xcav York realized that Ave Avere so ciose 
to adjournment it was necessary to act j^romptly, and Avhen I Avent 
to his office at half past 2 I found he had already drafted his ideas 
in the form of an amendment to the sundry civil bill and had intro- 
duced it, so it might lie on the table for 24 hours and pass to the 
conference Avith the other l)ills. 

His amendment provided that no such permit shall be granted 
alloAving diversions of Avater exceeding 15,r.OO cubic feet a second Avitli- 



pin':sEKVA'rioN of >jiaoara falls. 157 

out being seiil to the joint commission provided for by such treaty. 
1 met liim in the Vice President's room, jind I said to him. " In the 
first place, the joint high commission is cumpc.sed of Canadians as 
well as Americans, and the treaty has already determined that we 
are entitled to 20,000 cnbic feet, so the Canadians should not have 
anything to say about the division of any part of that 20.000 cubic 
feet. It should be the American members of that joint high com- 
mission." He said, " I recognize that that is better." I said further, 
" It should read, ' without the consent of the State of New York and 
the iVmerican members of the joint high commission.'" He said, 
"That is the best politics and tlie best law that has been suggested 
since this matter started." He saw the n:iembers of the conference 
committee, and I personally went to Mr. Siilzer and Mr. Driscoll and 
arranged through them so that I met Mr. Tawney and Mr. Fitz- 
gerald, of Brooklyn, with the result that it was finally agreed that 
the sundry civil bill as reported out should contain this specific 
provision. The question of amendment came up in the Senate, as 
you know, the Burton interests controlled and there was nothing 
done at the special session which follo^^'^d before the expiration of 
the Burton law in June. Mr, Root introduced a bill in the Senate 
and Mr. Simmons in the House. Mr. Simmons's bill being now before 
you. containing the exact words of the suggestion made. It reads 
now: 

No such permit shall be granted allowing diversions of water exceeding in 
the aggregate 15,600 cubic feet per second without the consent of the State of 
New York and of the commissioners on the part of the United States in the 
international joint commission provided for by such treaty. 

That is the bill, one of the two bills, which you now have before 
you. The other bill is the Smith bill, which was also introduced at 
the special session, but neither was allowed to go through because 
you were considering special matters at that session. 

The Chairman. Which of the two bills, the Smith bill or the 
Simmons bill, do you prefer? 

Mr. ScovELL. I am going to dissect both of tlienL and ask you to 
develop a bill of your own. [Laughter.] 

The Chairman. I suppose that is what the committee will have 
to do. 

Mr. ScovELL. The attitude of the executive of the State of New 
York has been communicated by him to lioth of the Senators in this 
letter : 

State of New York, 

Executive Chambkr, 

Albany, N. Y.' 
To Hon. Elihu Koot and Hon. James A. O'Gorman. 

Gentlemen : Permit me to call your attention to the importance of preserving 
the control of the State of New York over the waters of the Niagara River, 
authorized to be appropriated by the treaty between the United States and 
Great Britain on the boundary waters between the TInite<l States and Canada, 
proclaimed May 13, 1910. 

The Government of the United States as such controls the navigable streains 
* * * by the Federal Constitution; namely, for navigation purposes. It is 
the contention of the State of New York that when the Federal Government has 
authorized the diversion of waters from a navigable stream for any purposes 
other than navigation its power ceases, except * * * recalling the author- 
ization and determining that the authorized diversion is not exceeded. The 
determination of whether any part of the amount authorizeft by the Federal 

28305—12 11 



158 PRESERVATION OF NIAGARA FALLS. 

Governiueut shall be diverted aud to whom rests with the State of New York. 
The State of New York is the owner of the hed of the stream and in the control 
of its riparian waters generally, hnt is the owner in fact of special riglits of 
ri))ariau control in the Niagai-a River i)rocnring to it * * * ownership of 
the Niagara Park, including the islands. The State has heretofore made no 
grant for the use of these waters. It may also desire to make use of the 
waters permitted to be diverted, in some way not yet settled. 

In view of these conditions I beg to request that you use your best endeavors 
to procure for the State, in any Federal legislation on this subject, a recognition 
of the principle that the State of New Y'ork shall have exclusive jurisdiction 
and control over the use and diversion, whether temporary or permanent, of 
all waters authorized to be diverted within the State by the treaty with Great 
Britain. 

It is suggested for your convenience that this prmciple might be covere<l by 
a provision in the proposed law substantially to the following effect : 

That such i^er.son or persons as shall be designated by the newly constituted 
authorities of the State of New York, and none others, shall re<-eive the use 
and diversion of the waters authorized to be diverted by said treaty, subject as 
to the total amount diverted to the sui)ervision and control of the Secretary 
of War. 

The Chairman. Not exceeding the amount stipulated in the 
treaty ? * 

Mr. ScovELi.. That is what he says, " subject as to the total amount 
diverted, to the supervision and control of the Secretary of War." 
[Reading :] 

I shall, of course, be glad to exchange views with you on this matter at any 
time, and there are points cognate t<t this subject upon which I shall address 
you separately. 

Very respectfully. John A. Dix. 

The success which has been achieved in the Conservative Party 
in Ontario through its policy for the establishment of a hydraulic 
electric power commission and the distribution through the Prov- 
ince, mainly for the purpose of enabling .small industries in small 
communities to be able to get cheap power and keep out of the large 
cities the laboring population and give them an opportunity to live 
in small communities, has worked so well that the State of New 
York, on the advice of the governor during the last session, devised 
a conservation commission for the State of New York with very 
broad and ample power. That commission, according to a letter 
that I have from its chairman to-day, will be represented before your 
body officially next week, on Tuesday, when you gather, as will also 
the State of New York, on this issue. The personnel is one, I am 
sure, to which you can intrust the matter of the division and diver- 
sion of this additional water. Whether the State will want to take 
i£ itself, develop it and transmit it, or whether it shall wish to give 
it to some corporation which can use it most effectively and then have 
that corporation transmit it and distribute it under regulations 
imposed by the conservation commission, is yet a matter to be deter- 
mined in each individual case by that commission. 

Mr. Shari'. Would he have it in his power to give that away to 
anybody else except these two companies ? 

Mr. ScovELL. As against the riparian rights that is a ques- 
tion which the State has under consideration. It follows that, as 
between the two, it is for its interest to give it to that corporation 
which can make it most efficient in any event. The Niagara Falls 
Power Co., by reason of having only 136 feet of head, can only 



PEEvSERVATION OF NIAGARA FALLS. 159 

develop 110 horse power per culiic foot, whereas the hydraulic com- 
pany, having 210 feet head, can develop approximately 218 horse 
power per cubic foot. 

Mr. LiNTHicuM. What horsepower would this additional Avater 
furnish ? 

Mr. ScovELL. It is easily computed on the basis of 10 horsepower 
per cubic foot. For the Niagara Falls Co. on the basis of 44,000 
horsepower 

Mr. DiFEXDERFER. It would be 0.81 more, whatever that would be. 

Mr. Gallagher. About 80,000. 

:Mr. ScovELL. Just about 80,000, and if the State of New York saw 
fit to take the water from the upper river to below the next two 
pools, which are described so fully in the report of the War De- 
partment, it is possible to get a net head of 276 feet and get 24 horse- 
power per cubic foot, which would give in the neighborhood of 
105,000 horsepower. Those are matters of policy and of legislation, 
of constitutional legislation on your part, or in the State of New- 
York if you delegate these things to the State of New York. 

Mr. DiFENDERFER. ]Mr. Scovell, the gentleman you referred to a 
while ago has just come in. 

jVfr. ScoAELL. I did not Avish to ask a question. I merely said that 
the Thomas E. Wilson Co., which manufactures carbide in Canada, 
used two of the levels of the old canal for the generation of power. 
That was an assertion I made relative to the use of the Welland 
Canal for power. 

Now, if we psiss quickly to the bills themselves 

Mr. Cooper. You have not yet mentioned the difference in the 
cost — the price paid. You said you )iad some suggestions. 

INIr. ScovELL. I think the question of the price at wdiich powder 
should be sold should be left to the public service commission of the 
second district of the State of New York, or such public service 
commission as controls wdiere the pow^er is sold. The State of New 
York, acting through its public service commission, can determine 
those things for the benefit of the people of the State to better ad- 
vantage, I think, than your committee or a special commission to be 
appointed. 

Mr. LiNTHicuM. What is Buffalo getting power at now? 

Mr. ScovELL. That varies according to whether you wish a very- 
small amount or a large amount. I Avas president of a small indus- 
try in Buffalo which used 18 to 25 horsepower, and I used Niagara 
Falls power, and I found it was so expensive that I cut it out. It 
cost me $3 a month per horsepower for half a day's service. I found 
I could install the natural gas engine and make it more economical, 
and so I did that. I sold my dynamo and put in a gas engine. 

I might say in this connection as to the cost of power that Mr. 

, who built the Bethlehem Iron Works — — than whom there 

is probably no greater mechanical authority told me that the cost 

of producing power by steam was the smallest for continuous 24 
hours' service at Birmingham in England, where it could be had at 
a cost of $36.36 per horsepower per annum : and that the next cheap- 
est cost was ijfi one of the coal areas in the United States — in Penn- 
sylvania — where it could be purchased for $36.52. 
Mr. Cooper. A year? 



160 PKESKKVATIOX OF NIAGARA FALLS. 

Mr. ScovELL. Per annum for a 24-hour poAver. I may say in 
tills connection as hearing upon the general scope of the situation, 

that the late Sir John , who was a member of the firm of 

Jay Cooke & Co., of Philadelphia, before his return to London, 
asked me to go before a committee of bankers who were considering 
some of the debentures for the second wheel pit of the Niagara 
P'alls Power Co. and state to them whether I thought there Avould 
be a market for the power, and I quoted those figures which had 

been furnished me by ^Ir. . But I stated that the maximum 

price at that time being $20 foi' continuous •24-hour service, no 
corporation desiring continuous 24-hour service and in which power 
was a large factor in the cost of production could afford to locate 
anywhere but at Niagara. 

They then asked me what classes of corporations would want that. 
I told them I was neither a prophet nor the son of a prophet. When 
work began on the Niagara Falls tunnel, there was a boom. Through- 
out New P^ngland there was a poi)ulati()n of five for every horse- 
power available, and it was expected that the development of Niagara 
would bring a population there of a million. The first company to 
want Niagara Falls power was the Pittsburg Reduction Co., which 
produced aluminum by electro-chemical processes, taking a large 
quantity of jiower, and it so happened that thej' expected to use such 
power as is purchased for lighting and running trolley cars. At the 
time of which I am speaking there were no corporations using Niag- 
ara Falls power. There were no processes used for the application 
of Niagara Falls power which had been patented when Avork began 
upon the tunnel and there were no products made from those proc- 
esses known to science when work began upon the tunnel. Conse- 
quently I could not predict what classes would want the excess power 
which would be produced. You have heard how that demand for 
power by the electro-chemical companies is constantly increasing. 
The principal reason why the amount of water given to the Hydrau- 
lic Power Co. was increased at the time of the passage of the Burtcm 
bill was that, having got a permit for 6,500 horsepoAver, the alumi- 
num compan}^ of America Avanted such a large quantity of power 
they could enter into a contract forthwith and so enable them to 
ask for the allotment to them of more Avater. The Union Carbide 
Co. told us, " They are increased 10,000 a year, and yet Ave are not 
allowed to use the waters we are given b}'^ the treaty, nor are we 
allowed to import more poAver." 

Mr. Lixtiiici-:m. And the State receives no revenue from this 
whatever ? 

Mr. ScovKLL. No, sir. T happened to rent a small amount of 
power for a corporation of which I am treasurer from Gen. Greene's 
company. Within six months I haAe been asked whether or not it 
would be possible for three different corporations — one that wanted 
5,000, another 6.000. and another 10,000 horsepower— to locate at 
Niagara. I said. " You can not get it on the American side. The 
only companv that imports for you is Gen. Greene's company, and 
he IS up to 5t,000, Avhich is within 3,000 of the limit, and until Con- 
gress makes provision so we can get more, or else permits us to use 
our own more fully there is no use coming to Niagara, except you 
located on the Canadian side." 



PEESERVATION OF NIAGARA FALLS. 161 

Mr. Sharp. Do you think there is the probability of Americans 
going to Niagara and locating on the Canaclian side? 

Mr. ScovELL. I do; and very quickly. 

Mr. Sharp, I should imagine that should be controlled. 

Mr. DiFENDERFER. For the reason that they can get power cheaper. 

Mr. ScovELL. So they can get it at all. There is no question at all 
of competition between the Niagara Falls Power Co. as against the 
Hydraulic Power Co. There is no difference in the rate at which 
they can afford to sell, because the demand for the power is so far 
in excess of what can be supplied. 

Mr. ^)IFE^;DERFEK. Have you heard any individual complaints as 
to the high price of power that is furnished ? 

Mr. ScovELL. I have in Buffalo but not at the Falls. I attribute 
it in Buffalo to the necessity of taking off three profits, as I said 
awhile ago. 

Mr. Garner. With reference to your advice to the corporation in 
New York that it was impossible for them to get additional power 
on account of tlie 130,000 horsepower now in use, with the exception 
of 8,000, isn't there a company uj) there that has a permit for some 
4G,000 horsepower, which is not being used ? 

]\Ir. ScovELL. They do not import any into the United States. 

Mr. Garner. If that permit was canceled, w^ouldn't you he able 
to get more power? 

Mr. ScovELL. That would dej^end upon Gen. Green's company's 
relation to the Ontario and Dominion Government as to the propor- 
tion of the power generated by his company which they would allow 
to be exported. 

]\Ir. Garner. But if this permit was canceled, some other company 
could take it up and bring it in? 

Mr. ScovELL. Quite true. 

Mr. LiNTHiciTM. AYould you mind filing here a list of prices in 
Buffalo where these companies are operating? 

Mr. ScovELL. I believe the mayor of Buffalo has recently asked 
for an appropriation of $35,000 in order to get such data. "V\Tiile 
I might pose as a ])hilanthropist, I could hardly do that. 

Mr. Barton. The schedules are printed and open to the public. 
Anyone can get them. 

Mr. LiNTiiicuM. Will you file such schedules? 

Mr. Barton. Yes, sir. 

Mr. CuRLEY. Is there any way we could get the same prices in 
Canada? 

]\fr. SrovETX. The schedule would refer to prices for poAver fur- 
nished by the hydroelectric power commission. 

Mr. CuRLEY. Is there any limit on the prices charged by the power 
companies? 

Mr. ScovELL. The only way in which that can be done, so far as 
I know, is by State regulation of prices at the time of granting per- 
mits to them to take water. Otherwise the law of supply and demand 
will control, and the demand is so great in the United States that 
even if the doors were open for the importation from Canada of all 
that Canada can produce, there Avould still be no competition because 
of the demand. It would be a matter of competition as between 
power produced hj coal as against power produced by water. 



162 PRESERVATION OF NL^GARA FALLS. 

Mr. Cooper. Mr. Scovell. in view of what you just said of the 
mayor having asked for an appropriation of $35,000 to get at the 
prices, and the statement of the gentleman to the right that that 
will be given by him gratuitously without it costing anybodj' a cent, 
I move to inquire if there was some reason for the mayor asking for 
$35,000 to get what would be given to him for nothing ? 

Mr. Scovell. The question of what people pay for power and what 
the schedules are are very dilferent things, j'ou know. The effort on 
the part of the mayor is to determine whether or not these prices 
could be lessened to the nnitual advantage of the people and the 
company. 

Mr. Cooper. Have there been complaints of a serious character 
there as to discrimination as between consumers? 

Mr. Scovell. I could not say as to that, but I think the complaint 
has been largely an undertone on the part of the users. We are 
glad to get the power because it is cheaper, but we are not the elec- 
tric city that we thought we were going to be. That is all, so far as 
that is concerned. The company Avhich I formerly represented, the 
former mayor of Buffalo asked its controlling interests as to whether 
or not if they got the right to develop power at the Devils Hole, 
where they could produce 24 horsepower per cubic foot of water, they 
could bring power to Buffalo; and if so, at what price. The party 
in question stated to the mayor of Buffalo that thev would be glad 
to contract to deliver at the city limits of Buffalo 25,000 horsepoAver 
at $15 per horsepower. 

Mr. Foster. If I understand your position Avith reference to im- 
porting electricity, you do not think Ave should place any restrictions 
upon it? 

Mr. Scovell. The provisions in the Smith bill Avitli reference to 
placing restrictions on importations, I Avill omit entirel}'. It Ave 
have no use for it, they will probably cut it off' and take it back. 
But Ave Avant as much as we can get and as soon as Ave can get it, 
and leave to the officials of the State of Ncav York apj^ointed for 
that purpose the question of its distribution to us and the prices fixed. 
And I can sa}^ that the commission of the State of NeAV York have 
been in close touch Avith the hydraulic electric-power commission 
of Canada, know aaIuU they are doing there, knoAV Avhat prices can 
be obtained, and have the benefit of all the information that the 
Ontario goAernment has in this matter, Avhich it has gained from a 
practical undertaking of the distribution. There is no question as 
to the poAver of the State commission to undertake to carry out what 
is necessary to make this Avater most efficient to the people of the 
United States, Avhether imported from Canada or generated here. 

Mr. Sharp. Then you Avould not quite agree Avith Mr. BroAvn's 
statement that there would be no right or authority to impose con- 
ditions under Avhich Ave could import ? 

Mr. Scovell. I assume, upon the assertion of the gentleman fi-om 
Detroit, when he ansAvered Acry frankly a question a little Avhile 
«go Avherein he indicated there Avould be no desire on his part to 
do a certain thing, that there Avill be a desire on the part of the 
Niagara Falls PoAver Co. or the Hydraulic PoAver Co., through 
their attorneys, to test the conunon law of riparian rights Avith re- 
spect to the Avator as l)etween the State and any person to Avhom the 
State mav ijrant it. 



I 



PRESERVATION OF NIAGARA FALLS. 163 

Mr. Brown. As a lawyer, don't you generally take the same posi- 
tion under the general princii^les of law? 

Mr. ScovELL. I do, on the common-law basis; l)ut I do believe 
that the common law is subject to change by statutory law, and 
in this case not only is it changed by statutory law, but we have 
gone one step further on this change and the relative rights have 
been placed by a treaty which is the supreme law of the land and 
which can entrench upon the Constitution. 

Mr. Brown. Speaking now of the question of importations, as the 
treaty does not prohibit importations, don't you think the use of the 
power should be unrestricted, both from a legal standpoint and from 
the standpoint of policy? 

Mr. ScovELL. You were thinking about imported power? 

Mr. Brown. Solely. 

Mr. ScovELL... I was speaking before as to riparian rights. Let 
me understand your question as to imported power. 

Mr. Sharp. I asked the question. I referred to the imported prod- 
uct, and I was asking if you agreed with the statement of Mr, 
Brown that we have no right to impose conditions of different kinds, 
whether it be price or quantity, upon the importation of the power? 

Mr. ScovELL. As far as that is concerned. T believe that you have 
that right as to what is imported, to determine the terms. 

]Mr. Foster. To restrict it, vou mean ; to prevent its Ijeing imported 
at all? 

j\Ir. Scovell. No; you can not prevent, I think. 

Mr. Foster. We have the right to regulate it? 

Mr. Scovell. We have the right to regulate it. 

Mr. Sharp. And impose conditions? 

Mr. Scovell. Yes. The question is Avhether you shall keep that 
to yourselves or whether you will give it to a commission such as 
was suggested yesterday by Mr. Doremus. He introduced a bill yes- 
terday for the establishment of a commission in the United States 
which should govern prices at which ]iower should be sold. 

Mr. Foster. I have not talked with him, but I suppose he be- 
lieves we have the right to prevent its importation, and that, there- 
fore, he is in favor of it because in that way he hopes to ]n'eserve 
the scenic effects. 

Mr. Scovell. I believe he thinks we have that right. 

Mr. Foster. Do you agree w^ith him on that? 

Mr. Scovell. 1 can not judge that as a lawyer very well. I had to 
do with the question of importation of natural gas and whether it is 
subject to duty.* As far as the United States is concerned, it was 
determined that we had the i-iglit to import natural gas and that it 
was not subject to duty. 

JStr. Cooper. By whom was it determined ? 

Mr. Scovell. t believe l^y the highest courts of this country. As 
far as the courts of the State of New York are concerned, they have 
decided that the water of Niagara River, although the State owns the 
bed of the stream, is flow water and is like air, or light, or the heat of 
the sun ; that it is public and belongs to him who first impounds it. 

Mr. Brown, You mean to sav that that is the law of the State of 
New York? 

Mr. Scovell. Yes, sir. 



164 PRESERVATION OF NIAGARA FALLS. 

Mr. Bkown. I disagree Avitli you. and the courts of Xew "^'ork 
disagree with you. 

Mr. Garner. May I ask you a question ? I want to get at what 
your views are with reference to two or three propositions involved 
in this. 

Mr. ScovELL. Just a moment. The reason I said that is this: The 
question as to the right of these several corporations to take water 
from the river — it has been determined b_y the courts that this is not 
a grant of water, but is a grant of permits. Otherwise they would 
all be unconstitutional, nr.ll and void, because they were not passed, 
two-thirds being present. 

Mr. Foster. I was referring to the treaty. AVe have made the 
treaty. I am not expressing my views about it. "We have a treaty 
by which we are permitted to take so much water and Canada is 
permitted to take so much water for the development of power. 
Now, the question that arises in my mind is where we get our right to 
say what Canada shall do Avith the power. 

Mr. ScovKLi,. "\'ou liaM' no right whatever to say what Canada 
shall do with her joower. She can restrict its being sent to the United 
States if she wishes that. 

Mr. Foster. Yes; but if she wants to send it to the United States, 
can we restrict it? 

Mr. ScoM^LL. I should think not. 

Mr. Brown. I agree with you there. 

Mr. ScovELL. I think the Burton law is a bad law. but we never 
expected it would be contimied along indefinitely. We abided by it 
without testing it because Ave ncAer expected it AA'ould run for six 
years. 

Mr. Sharp. Do you think Ave Avould be compelled to accept a power 
or current sent from there over here? 

Mr. ScoA'ELL. The distribution and sale of it to the citizens of the 
States rests upon the law of that State: and if there is a commission 
that determines those things, it Avill be determined by that commission. 

Mr. Fos'it:r. If it is once sent oA-er here, then it Avill be subject to 
such regulations? 

Mr. Sharp. Oh, yes; it Avould only be an academic discussion as to 
whether they had a right to send it oA^er hei-e. 

Mr. ScovELL. If Ave put in a provision that they could not send it 
o^•er here except as they sold it at $4 a horsepower, then the question 
would be academic. 

jNIr. Cooper. Do you say the United States can not pass a law pro- 
hibiting the importation of electric ])OAver from a foreign country? 

Mr. ScovELi.. That is my im])ression. 

Mr. Cooper. Is it any more than a very vague impression? Is not 
this United States Government absolutely supreme beyond the ])ower 
of any (Tovernment on earth to force a thing inside the boundary 
Avithout its consent? 

Mr. Foster. Oh, yes. But Avhat provision in the United States 
Constitution ]irevents me from importing electricity if I Avant to? 

Mr. Sharp. The United States GoA'ernment can ])rohibit you from 
buying broadcloth from a foreign country. The right over com- 
merce Avith foreign countries is absolute, without any sort of qualifi- 
cation Avhatever. and. the (lovernmont can ])rohibit it as it did at the 
time •f the embargo hnv. There is not any doubt about it in my 



PRESERVATION OF NIAGARA FALLSj 166 

mind. It can stop the iniportation of dry goods, and why can not Ave 
stop them from forcing power in here? 

Mr. ScovELL. We can not stop them from sending wireless mes- 
sages. I have talked between NeAv York and Toronto without wires. 

Mr. Cooper. That is not a parallel case. I suppose you could have 
a man standing on each side of the boundary line, and one of them 
by signs threaten to lick the other man. I am talking about a subject 
which involves the putting uj:) of conduits and wires for carrying 
power 

Mr. Broavn. May I make one suggestion? If the Govermnent has 
power to prohibit importation directly by a straight unqualified pro- 
hibition, or indirectly by restrictiA^e terms, must not that be enforce- 
able as to all acts, persons, and jjlaces? Can the GoA^ernment make a 
restriction, as I said yesterday, that is not general ? 

Mr. ScovELL. The Avhole international boundary is under purview 
in this. 

Mr. Cooper. That the Government of the United States can pass 
a law prohibiting the importation of electric power from a foreign 
country, I should say, Avonld be in laAv absolutely incapable of con- 
tradiction. 

Mr. Broavn. Ea'cu the Burton hnv does not attempt that. 

Mr. Cooper. Noav, Mr. Scovell, don't you think that the United 
States can bj" statute prohibit the importation of poAver? 

Mr. Scovell. I have not looked that up, but I think perhaps it 
can. The Burton laAv is not such a laAA' 

Mr. Cooper. The question Avas asked, Avithout regard to a par- 
ticular locality, as to Avhether the United States Government could 
stop the importation of electric power, and you gaA'e it as your im- 
pression that Ave could not do it. If it can not the United States 
Government is not supreme. 

Mr. Scovell. I understand that in any question of importation or 
exportation the United States Avould be supreme. 

Mr. Cooper. Absolutely Avithont qualification. The embargo law 
passed a century ago shoAvs that. 

]\Ir. Foster. The embargo laAv did not last long. 

Mr. Cooper. It lasted long enough to shoAv that Congress could 
pass a hiAv Avhicli absolutely prohibited the importation of anything 
from certain countries. 

Mr. Garner. Xoav, I Avant to get doAvn to some more practical 
ideas, or rather get your ideas of Avhat ought to go into this bill. 
Let me see if I can get your position as to what ought to be done. 
You want, in the first place, the 4,400 feet to come in? 

Mr. Scovell, To be made available. 

Mr, Garner. You Avant the full capacity of the 20,000 feet Ia^ be 
utilized by this Government? 

Mr. Scovell. I Avant it utilized on this side. 

Mr. Garner. Of course, if it is utilized at all, it Avill be utilized on 
this side. In addition to that, you think New York ought to haA'e the 
right to control this poAver Avhen it is utilized? 

Mr. Scovell. I do, not only Avith respect to the 4,400, but the whole, 

Mr. Garner. The entire 20,000 ; that is Avhat I belicA^e I said. In 
addition you believe Ncav York ought to be permitted to utilize and 
control 500 additional cubic feet? 



ll60 PRESERVATION OF NIAGARA FALLS. 

Mr. ScovELL, It does not make any difference how much it is — the 
sur|)lus waters of the Erie canal. 

Mr. Garxer. Then you believe that the power should be permitted 
to come into this county, as much as possible from Canada, and that 
the control and regulation of that power should be left to New York? 

Mr. Sco\ EL!.. I do. 

Mr. Garnek. With those provisions in a l)ill. it would nearly per- 
fect the treaty? 

Mr. ScovELL. Nearly. 

Mr. Garner. Now. what have you to say with reference to the de- 
sire of the State of Michigan to receive some of this power? 

Mr. ScovEf.L. They would not take any of the United States power. 
They are simply asking for some of the Canadian power. 

Mr. Garner. They ask for the importation of it. Do you mean we 
should put the entire importation of power into the hands of the 
commission of New York? 

Mr. ScoVELL. I do not. Simply give it to the control of the State 
into which it passes. It would not make any difference if it was in 
Minnesota, or Michigan, or down at Ogdensburg where they take the 
230wer from the St. Lawrence. 

Mr. Garner. Whatever State it may be imported into, the laws 
of that. State should control the power after it reaches the State? 

Mr. ScovELL. Yes, sir. 

Mr. Garner. Well, I don't know but what I agree with you. 

Mr. ScovELL. The cjuestion that comes to my mind as the result of 
the thought I have given to it, if during the year since we originally 
planned the changes in the Root bill which are embodied in the Sim- 
mons bill before you, seem to have resulted in my reaching the con- 
clusion that it is undesirable that nnj more strings be tied around 
the use of the 4,400 cubic feet such as would be the result of requiring 
the consent of the American members of the joint high commission; 
and I am ready to say that whereas then we had no conservation com- 
mission in the State of New York, and whereas now we have newly 
constituted authorities in the form of a conservation commission, 
that it would be sufficient to proA'ide that the permits should be issued 
by the Secretary of AVar on the recommendation or with the consent 
of the conservation commission of the State of New York, and on 
such terms and subject to such regulations as thev should impose, 
the same to be true as to other States along the boundary where 
importation may occur. 

Mr. Garner. But your broad proposition is this: That as far as 
the Federal Government could go is to see that not more than 20,000 
cubic feet per second is taken out on this side, and that should be 
left to the Secretary of AYar; that that far we should go and no 
farther, leaving the rest of the details and regulations to the States 
that take this power? 

Mr. ScovELL. Exactly, whether imported or generated in this 
country. 

Mr. Harrison. Suppose we should pass such a law as this, giving 
States power to regulate rates, and they should pass laws ordering a 
certain rate to be cliargt'd and the companies should enjoin the en- 
forcement of that right on the theory that we had authority here, 
that it was a Federal proposition, do you think that would avail them 
anything? 



PRESERVATION OF NIAGARA FALLS, 167 

Mr. ScovELL. I do not. 

The Chairman. Have you concluded? 

Mr. ScovELL. I have. 

STATEMENT OF MR. ALBERT F. EELLS. 

Mr. Chairman. Will you give the reporter your nauie and Avhom 
you represent? 

Mr. Eells. Mj^ name is Albert F. Eells; I represent no one but 
myself. 

Gentlemen, I have but a crude outline of my plan, as when I re- 
ceived notice of this meeting I was gathering facts bearing on this 
subject and am unprepared in many details: AVhat I jjropose to do 
is this: To build a power house below the cliffs at Niagara Falls, 
which will be constructed Avith a granite front and over the roof of 
which will pass the waters of Niagara River. Then the water will 
fall over the front of the structure and be equally distributed over 
the entire front, hiding it entirely from view. The crest or front of 
this building can be formed to produce any effect on the falling water 
desired. The cliff' now there could be copied if desired. The crest 
could also be raised to any desired height. This falling water can 
be utilized at the base of the power house to operate wheels made 
especially for that purpose, Avhich can be connected with generators 
for generating electricity. These wheels are also invisible from the 
outside, as is also the entire structure. A gallery may also be made 
in such a manner that visitors can pass safely under the entire 
waterfall. 

To accomplish this object it will be necessary to divert the water 
from the part of the Falls Avhere the workmen are operating, and for 
this purpose I shall require an international permit: also a permit 
to remove the loose stone now laving at the bottom of the P'alls, and 
possibly a permit to lower the river below the Falls by removing 
some obstructions down the gorge, and, as the scenic beauty of the 
Falls will be augmented and the Falls preserved from disintegra- 
tion, after finishing this Avork, I think I should be paid a speci- 
fied price for doing this work. This is the situation at present 
at the Horseshoe Falls: The water is eating up into the cliff' at the 
rate of between 5 and feet a year. In a few years we shall see noth- 
ing of the Canadian Falls excepting a gorge with some fog at the 
mouth of it. By this plan the scenic beautj' of the Falls will be aug- 
mented, the water level in the rivei' will l^e slightly raised, the Avater 
passing over the Falls Avill be utilized for a power, and the people 
Avill be receiving a benefit of a great electrical power: also employ- 
ment in the construction and operating. 

Gentlemen, this is a blue print Avhich I got doAvn at the engineers' 
office and which I suppose is the largest of the Niagara Falls and the 
Horseshoe. Being a little dim to look at from a distance I had a 
tracing made which shows it so that the Avhole committee can see. 
This [exhibiting drawing] represents the Horseshoe. This is the 
1875 line. The uj^per edge of the black line is where the Horseshoe 
is at the present time. It is gradually eating up into the stone at the 
rate of between 5 and G feet a year, and that in a short time is going 
to make a gorge up in here and the only thing we shall see of Niagara 
Falls Avill be a gorse and a little steam at the mouth of it. 



168 • PRESERVATION OF NIAG.\RA FALLS. 

I have means of preventing this. You see this red line [indicating]. 
I propose to put a granite wall in there for the water to flow over, 
which can be made perfectly level and distribute the water all over 
the surface of the Falls. JBehind this wall I would put a power 
house. For the foundation of that power house stone would be 
dumped in until it got up to a level with the water or higher. On 
that would be put pillars, on which would be put a roof, and over 
that roof would flow the water. This wall can be made to take any 
form necessary, and we could have any effect of waterfall desired. 
Now this water after passing over the falls would entirely cover this 
line [indicating], which would be the front of the fall. At the lower 
part of this power house I have wheels which would be operated by 
the falling water to generate electricity, and instead of having a 
famine of electricity we would have a very large amount of it to use. 

Now, hoAv T am interested in the matter is this: I have a patent 
for using a deflecting front for a waterfall; that is, for putting a 
power house behind a wall. To do this it will be necessary for me to 
divert the water from the Horseshoe and from other parts of the 
falls, and to do that it will be necessaiy to get an international permit 
for the work. So I come before you people to find out what your 
feeling would be in this matter. Of course, if you are opposed to it 
that ends the matter. 

The Chairman. Isn't that a different proposition from the one we 
are considering? 

Mr. Eeli-s. I do not know. 

The Chairman. It has no relation to it, Mr. Eells, has it? 

Mr. Eells. It has nothing to do with that treaty ; no, sir. 

Mr. Cooper. How fast did you say the water was eating back? 

Mr. Eells. Between 5 and G feet a year, according to measure- 
ments. You can see it here on the blue prints. 

Mr. Foster. Do you know how much it would cost? 

Mr. F^ELLS. I have not got the details yet, I want to say if this 
should be favorably received by the committee it is going to be an 
expensive matter. Of course, I wish to get the ideas that would be 
brought out before this committee and I would like to get their idea 
as to whether they will look upon this favorably or unfavorably. It 
is going to lx> an expensive matter to get these details of the cost and, 
of course, I do not wish to spend the money myself unless this would 
be received favorably. Of cx)urse, if the gentlemen here feel unfavor- 
able Ave will dro]) this matter right where it is. 

INIr. Fos'reR. It seems to me we would have to get a new treaty. 

Mr. Eells. I do not see what it has to do Avith the treaty. This 
is unseen altogether. This is all behind the Falls. None of my works 
are in view. 

Mr. Foster. I mean with regard to building that wall. 

Mr. Eells. I do not ask you to spend the money. I will supply 
the money : I or my associates. 

Mr. IlARRisdx. How will you be reimbursed for your expendi- 
tures? 

Mr. Eells. By the electric i)ower. It will be something like 
2,000,000 horsepoAver. AVe propose to use it all : that is, Avhen it is 
wanted. It Avould not affect the Avater beloAv the Falls. 

The CiiAiR^MAN. Have you made application to the commission 
in Canada? 



PEESERVATION OF ^^lAGARA FALLS. 169 

Mr. Eells. I have been over to Canada and they seem very enthu- 
siastic. You see, the}' charge so much per horsepower for the water 
which is used, and they see an opportunity of getting more revenue. 

The Chair3ian. They have most of the Falls. Don't you think it 
would be a good idea to get their permission first? 

Mr. Foster. I think you will find us just as enthusiastic as Canada, 
but I think, perhaps, as the chairman has suggested, that Canada 
should take the lead. Canada turned us down on reciprocit}' you 
know. 

The Chairsean. We will hear Mr. Watrous, the secretary of the 
American Civic Association. 

STATEMENT OF RICHARD B. WATROUS, SECRETARY. AMERICAN 
CIVIC ASSOCIATION, WASHINGTON, D. C. 

The Chairman. Mr. Watrous, will you give the reporter you name 
and whom you represent? 

Mr. Watrous. Richard B. Watrous, representing the Ameiican 
Civic Association, of Avhich I am secretary. 

Mr. Chairman, in taking some time at this late hour of the day, I 
want to say that we had hoped very much that the president of the 
association might be here this week, for he has been before similar 
hearings and discussed this subject and is known as an authority upon 
the subjects we represent, particularly on all matters concerning 
Niagara Falls — Mr. J. Horace McFarland. At this time I desire 
to say that he will pi-obably be here next Tuesday, and we shall need, 
and I presume we can have, additional time to present the case as 
we see it. 

The Chairman. We shall be glad to hear Mr. McFarland. 

Mr. Watrous. In my position, gentlemen. T am reminded some- 
what of a certain meeting where a revival had been in progress for 
some time and the minister had asked all those who wanted to go to 
heaven to stand. The entire congi-egation arose. He had just pro- 
pounded the question whether there was anyone who wanted to go 
to the other place when a wayfarer walked in, followed an uneven 
course down to the front where he stood unsteadily. The minister 
said, " Are you the only one that wants to go to hell? " He replied, 
" Well, parson, you seem to be all alone, so I am willing to go with 
you." I have had a feeling in the presence of this august audience 
composed of president, attorneys, and engineer experts of the power 
companies, that I Avas almost alone. But I am not alone, Mr. Chair- 
man, because I have back of me the hundreds of thousands and 
millions of peojile of this country who believe that scenic glories 
such as Niagara Falls are things that have more than a commercial 
asset. 

In this connection, may I be permitted to say just a little about 
the American Civic Association, w^hich has been somewhat maligned 
in one or two cities represented here to-day, because it has spoken 
plainly concerning the falls. It is composed of thousands of repre- 
sentative men and women of this country, including some hundreds 
of affiliated societies which represent hundreds of thousands of indi- 
viduals. There is numbered among the members of this association 
the President of the United States, who joined voluntarily when he 
was Secretary of War. There are other members in the Cabinet. 



170 PRESERVATION OF NIAGARA FALLS. 

There are influential men and Avomen of all the States. They have 
been heard from on several former occasions when this matter was 
to be fought out. You, as Congressmen, and the gentlemen in the 
Senate, know that you have heard from them in letters and in tele- 
grams, and they have come from everj^ section of the country. The 
association represents the consolidation of State and interstate so- 
cieties organized for specific purposes which are mentioned in the 
circular which I hold in my hand. I am going to read from that 
the objects of the association, so that you may know what they are : 

The cultivation of higher ideals of civic life and beauty in America, and the 
promotion of city, town, and neighborhood improvement, the cultivation and 
development of landscape, and the advancement of outdoor art. 

I am going to ask the chairman for permission to hand that to the 
reporter to be included in the report of this hearing. 
The circular referred to is appended, marked "A." 
I am very glad to be an officer of that association. I also want to 
state that I am very glad to have had some years of contact with a 
distinctly business organization, so that I appreciate the value of 
business organizations — I mean aggregations of capital — and the 
important service they render to the country. I have never been con- 
sidered as one who is out continually with a hammer against such 
organizations. I desire to say — and I know I speak the sentiment 
of the president of the organization — that it is not because of ill- 
feeling toward the power companies that we have contended for the 
preservation of the falls, but for the larger devotion to the people 
of this country and of the world who appreciate the beauty of a 
scenic wonder such as Niagara Falls. I have felt this afternoon that 
we have gotten away from the thought of scenic beauty. We can 
not forget that all these hearings and the hearings before the Com- 
mittee on Rivers and Harbors and a large part of the hearings which 
resulted in the treaty are due exclusively to the idea that Niagara 
is a scenic wonder and ought to be preserved as such. Difi'erent 
phases of the question have been presented at length by attornej^s 
and by engineers, but I believe I am the first one so far to speak of 
the value of the Falls as an asset to all the people from the standpoint 
of its scenic glory. 

I do not want to try to discuss or enter into an argument as to the 
statement made yesterday concerning the vested rights of the power 
companies. I am reminded, however, that possibly there is a prior 
right to the falls, prior to those acquired by the companies there, 
as possibly illustrated by the photographs we have submitted of 
pictures made more than 100 years ago — a right of the people to the 
beauty of the Falls, a right which existed and was used long before 
we thought of using the water as a source of power. 

The Chairman. Have you any official records of the erosion of 
the Falls? 

Mr. AVatkous. I have not. 

The CiiAiioiAN. Could you get that? 

Mr. Spencer. I can get a statement of that and give it to you 
when I come to speak. 

The Chairman. We would like to have that go in the record. 

Mr. Watrous. Mr. Spencer, who has just spoken, is a recognized 
authority on the Falls. My "bible, however, is the reports, or reports 
combined into one, of the War Department, particularly of the Corps 
of Enginers. 



PRESERVATION OF NIAGARA FALLS. 171 

Mr. Foster. Would it interrupt you to ask a question rif>'ht there? 
1 think 1 should understand wliat you are saying a irood deal better 
if I knew Avhat you want to have us to do. Apparently the two 
Governments have adopted a policy with reference to using a certain 
amount of water there and have entered into a treaty regarding it. 
Now, if you could tell us in a word just what you want to have us 
do, then I could adapt what 3'ou have to say to that statement and go 
along a little more intelligently. 

Mr. Watrous. I can tell you. I think, in a few words. I am only 
going to impose upon you for just a few minutes longer. I want 
to dwell just a moment on this matter of recognition of scenic beauty 
as a material asset, and I am going to submit here, to be filed and 
recorded, a decision in the circuit court of the Ignited States rendered 
within the past vear or two in Colorado concerning a case between 
The Cascade Town Co. and The Empire Water & Tower Co. 

The opinion referred to is appended, marked '' B." 

Mr. Flood. Mr. Foster did not desire to cut you off. . His idea was 
for yon to state what you proposed that we should do with reference 
to this 4.400 culiic feet of water and importing any nu)re \\ ater. 

Mr. Watrous. I should be very glad to state that. 

Mr. Cooper. Perhaps Mr. Watrous has his remarks arranged and 
desires to put them in fn logical order to make them as effective as 
possible. 

Mr. Watrous. Briefly, Mr. Chairman, we stand just where we 
have been standing since we took up the consideration of the preser- 
vation of Niagara Falls. We stand for the limitations as prescribed 
by the Burton bill, both as to diversion on the American side, namely, 
15.600 cubic feet per second, and the importation of power from 
Canada, namely. 160.000 horsepower. Our stand is confirmed by the 
latest reports which have been issued from the War Department, 
concerning which I shall have something to say. 

I am going to ask that I may return to the introductory part of 
my remarks and say that the American Civic Association, in this 
striving for a preservation of the falls, has had the approval and 
cooperation not only of individuals but of many of the very repre- 
sentative business organizations of the countr}', and I want to submit 
for record a telegram which was sent on the 17th of last February 
by The Merchants' Association of New York urging in strong terms 
that the provisions of the Burton bill be extended. 

The telegram referred to is appended, marked " C.'' 

With regard to the desire of the city of Detroit to import cheap 
power, I want to submit to you a letter quoting letters that were sent 
to Senator Burton and to members of the Senate committee by Mr. 
J. L. Hudson, of that city, the proprietor of the largest retail store 
in the city, director of several banks, and a vice president of the 
board of commerce of that city. 

The letter referred to is appended, marked "D." 

I should also like to submit a very strong editorial from the Detroit 
Times of July 3, 1911. entitled,' "Every pound of power from 
Niagara is a pound added to the people's load." 

The editorial referred to is appended, marked " E," 

Right here let me say that the power companies themselves may thank 

the American Civic Association for having been very zealous to secure 

the reenactment of the terms of the Burton bill. For some reason 

or other it seemed to have been overlooked that with the expiration 



172 PRESEEVATIOX OF NIAGARA lALLS. 

of that bill there would bo no license for the iis^e of water or im- 
portation of power. At the time T appeared before 3^011. in June. 
T submitted, as the best evidence of that action, a letter, written on 
the 27th of June by the Secretary of War to the Speaker of the 
House of Repsentatives. stating the exact situation and telling what 
would happen with the expiration of the bill. I submit that letter 
again. 

The letter referred to is appended, marked " F." 

I believe that all of us are agreed that legislative action is neces- 
sary. I certainly am convinced — because I know of its efficiency and 
because I have a natural affection for the Army — -that the War De- 
partment should be the de])artment to have control, but there can 
be no difference of opinion as to the necessit}" for such action. As I 
said, my Bible, so far as figures and recommendations concerning the 
diversions of water are concerned, must be the reports of the Board 
of Army Engineers. We have had presented to us in printed form 
within the past week or two Senate Document Xo. 105, which con- 
tains the report of a distinguished Army engineer, Maj. Keller, 
which was completed. I believe, in the fall of 1908. T at times con- 
fess to a doubt, Mr. Chairman, that that report, which undoubtedly 
was called for for the express use of the commission in preparing the 
treaty, was ever brought to the attention of that commission. For 
some reason or other its publication has been delayed for more than 
two years, and we who have been following that question have not 
had the benefit of the observations and conclusions of the Army en- 
gineers. 

Mr. Brown. It is a fact that the conmiission had the use of all 
those things? 

Mr. Watrous. They should have had them, but some of us who 
made a zealous hunt for this particular report could not find them. 
It has been laid away somewhere for some reason which I can not 
understand. 

Mr. Cooper. Gen. Bixby said that that was given by the Secretary 
of War to the President on the 19th of last August, and published 
on the 29th or the ;^lst. At any rate, it was handed bv the Secretary 
of War to the President two clays before it was published, and two 
years and seven months after it was made. 

Mr. Watkous. I should say that, in the letter of the Secretary of 
War, it is stated that, for executive purposes, its publication was 
withheld, and I can understand that in negotiating a treaty there 
are things that must be held confidential. I am impressed with the 
statements made by this Army engineer and his recommendations. 
I want to read again, as was read the other day by ^Mr. Cooper, the 
conclusion of this Army officer's report, to whom was assigned specifi- 
cally the consideration of this question from the standpoint of scenic 
beauty. He says: 

Accord inply, 1 eainostly recouiinend that (unless the reinediul works just 
suggested be built) the niiuiinum limits of diversion authorized on the Amer- 
ican side, namely, 15,100 cubic feet per second, be reenacted. and that no greater 
amount of energy be permitted to be imported into the United States from 
Canada than 160,000 horsepower. 

^Fr. Flood. What is that vou are reading? 



PRESERVATION OF NIAGARA FALLS. 173 

Mr. "Watiiois. Page lo, of Senate DocMiment 105, given to us a 
Aveek ago. Those are specific recommendations making allowance 
for a plan proposed by an assistant engineer who suggested a sub- 
merged dam at some point in the Niagara Eiver which might have 
the effect of spreading the water. That I am not prepared to con- 
sider ; it is one of those problematical things. However, that report 
is very definite and yet notwithstanding that fact, the treaty allows 
an increase of 4,400 cubic feet and has not set any limitations as to 
the importation. Bear in mind, howe\'er, that the treaty says there 
"may be'' a diversion of 20,000 cubic feet; it is not mandatory, and 
it is evidently left to Congress to decide what it shall be. It should 
be borne in mind also that as has been shown in the reports or state- 
ments made during the past two or three days, that not all of the 
water that might be permitted to be used has been used and that the 
damage to the Falls which is mentioned as having been done was 
done as the result of taking not 15,000 cubic feet, but 13.000 cubic 
feet in round numbers. Therefore to extend the amount now by 
4.400 cubic feet, we think, vrould be a very large increase. 

Coupled with that is the very important presentation as to the 
waste that goes on Avith some of the companies, notably one com- 
pany which is mentioned by name, where the waste is reported as 
33^ per cent, to which I had the pleasure of calling your attention 
at your session on Tuesday — a waste of more than 2,500 cubic feet, 
which if transferred to water power, using the highest estimate, 
would mean .something like 50,000 horsepower in round numbers. 
That shows that by a management Avhich utilized what was given 
them there would be available a great increase of horsepower. 

I had the pleasure yesterday of bringing out also, as I thought, 
the fact that there does not seem to be any very urgent need ju=;t now 
for increased importation wdien it is recalled that out of the 160,000 
horsepower which might be used, but 110,000 has been used, or ]30S- 
sibly 115.000. T am using the statement of Gen. Greene at the hear- 
ing a year ago for the 110.000. There is also a permit existing to 
a company which for some reason has never used it, and which it 
■would seem to me might be transferred to some company that would 
use it, and it would take care of the request of Detroit for 25,000 
horsepov.er and still leave 25,000 iiorsepower. 

Xow, it has been shown that most of the damage to the Falls on 
the Canadian side is due to the fact that much of the Avater that is 
drawn off on the American side comes from the Canadian side of the 
river. Wlien the Burton bill was originally draAvn it Avas, of course, 
realized that it Avas impossible to say to Canada Avhat they could or 
could not divert, and Ave had to resort to a method of protection by 
indirection, and believing that Congi'ess had poAver to act. tliat clause 
Avas incorporated in the Burton bill which provided for the limita- 
tion of the amount of power that could be imported, namely, 160,000 
horsepoAver. 

In the face of the very disastrous possibilities to the Falls, Avhich 
we think existed at that liuie and AAdiich AA-e still think exists, as' 
shoAvn by the reports of the Army engineers, we insist that the limi- 
tation should be kept up noAv and under the treaty. The statement 
has been made that if we do not alloAv our people to import up to the 
limit of the development over there, there is going to be a very large 

28305—12 12 



I 74 PEESEEVATIOX OF NIAGARA FALLS. 

Canadian development. That does not worry lis greatly — and T 
think we are practical: I certainly want to be practical. 

There is a principle at stake, and it is a principle which is comino- 
to be recognized more and more. You gentlemen, as members of a 
committee of Congress, know that Congress is not legislating for 
Buffalo, or for Niagara, or for Detroit: you are legislating for the 
Nation. The Nation believes that in Niagara Falls it has a heritage 
which contributes to recreation, to pleasure, and to good health. 
The courts are coming to recognize, and we believe will recognize 
more and more as the years go by. the rights of the people to those 
things which contribute to recreation, and to pleasure, and to good 
health. The case which I have cited is a direct case, and under the 
jurisdiction of one of the United States courts. With this waste, 
showing what might be utilized, we are convinced that there is no 
practical need for increasing the amount on the American side. "We 
are particularly impressed Avith the idea that because of the danger 
to the Falls on the Canadian side, which wo all ktiow is greater than 
on the American side, we must continue, by indirection at least, to 
prevent that ruin to the Falls by kee})ing u]) tlie limitation (m the 
importation. Briefly, as Mr. Foster requested, our belief is now as 
it was last June when we labored to get the bill extended before the 
time might expire, and when just by a stroke of good fortune we Avere 
able to get it reenacted in the closing days of Congress — we believe 
now more than ever that the original terms of the Burton bill are the 
ones to be adhered to. 

The CiiAiioiAN. In that connection let me ask if your association 
has ever appealed to the Dominion of Canada, or the Province of 
Ontario, not to take ar,y more water for power p!!ri)oses? 

Mr. Watkoi s. I know that an appeal has been made, not by myself 
directly but by other officers of the association, some years ago. It 
is reported that in a conversation between our president, Mr. ]Mc- 
Farland, and Ambassador Bryce that the ambassador said if he could 
have his own way he would be glad to have a party in arousing 
Canadian recognition to beauty in the Falls. Up to the present time 
we have not discovered that "Ontario has paid any particular atten- 
tion to the scenic value of Niagara, although we are informed that 
one of the leading newspa]5ers of Toronto is an enthusiastic defender 
of the preservation of Niagara from the beauty standpoint. 

The CiiAiKMAN. Do you or do you not believe that Canada under 
the provisions of the treaty Avill use all the water she is entitled to 
use? 

Mr. Wairous. I Avish you would make that a little more definite. 
I do not think they will use it within the next two or three years. 

The CuAiioiAN. AVhenever they want to use water? 

Mr. Watkois. Eventually they may, but I do not believe tliat in- 
side of two or three years there is going to rise up a lot of new cities 
that will use power. 

The Chairman. In other words, you have no doubt that Canada 
will take advantage of the terms of the treaty and use whenever she 
wants to use it the entire 3(5,000 cubic feet of water? 

Mr. Watrot's. From the physical and structural stand])oint T have 
a good deal of doubt of any such immediate utilization. 

The Chair:man. "When they Avant to use it. they Avill use it? 

IVIr. Watroivs. Possibly. 

Mr. Flood. If thev do it Avill be some time in the future. Avon't it? 



PRESERVATION OF NIAGARA FALLS. 175 

Mr. Watrous. Yes, sir ; I have not allowed the Canadian situation 
to be very much of a bugaboo in my own mind. 

The Chairman. You are requesting the committee to stop the im- 
portation of power from Canada to the extent that it is now 
restricted under the terms of the Burton Act, and also to prevent this 
additional 4,400 cubic feet of water being utilized on this side? 

Mr. Watrous. Yes, sir. 

The Chairman. That is your position? 

Mr. Watrous. Yes, sir; and it is the position I take based on the 
reports of the Army engineers. 

The Chairman. If the people on the American side use the amount 
of v.ater they are allowed under the treaty of 20,000 cubic feet a 
second, do you believe, from your knowledge and investigation, that 
it will injure the scenic beauty of the Falls'^ 

Mr. Watrous. I believe it is based on the report of the Army 
engineers. 

The Chairman. Gen. Bixby said the other day that it would be 
unappreciable. 

Mr. Watrous. I doubt if I could discover it with the naked eye, 
but the investigations and the observations are to the eifect that 
there has been an appreciable withdraAval of Avater from the Falls. 
It has been unfortunate, in the opinion of most of us, that there has 
been any. 

The Chairman. Do j^ou believe the erosion going on injures the 
scenic beauty of the Falls ? 

Mr. Watrous. Yes, sir. 

The Chairman. That it has something to do with it ? We can not 
change natural laws. 

Mr. Watrous. We can not really interfere with the operations of 
Mother Nature. 

The Chairinian. Quite true. The question is whether taking this 
small amount of Avater injures the scenic effect of the Falls, or 
whether the injury to the Falls is not on acount of geological action 
and beyond our control ? 

Mr. Watrous. Not according to the reports that are made. The 
water taken away has had the effect of reducing the amount going 
over the crest of the Falls. That is a different proposition from the 
receding of the brink of the Falls. 

Mr. Flood. There was a gentleman here just now with a proposi- 
tion to stop that. 

Mr. Watrous. I have not read his complete statement. 

The Chair:man. It will be in the record. 

Mr. Watrous. I read this letter of Mr. Hudson, Mr. Chairman, 
as the expression of a business man for whose ability I have the great- 
est admiration. He writes to Senator Burton under date of May 6. 
Bear in mind, this is Detroit, where it is alleged they are so keen 
to get cheaper electricity. liy the way, seriously speaking, have we 
discovered that these cheap things ever amount to an^^thing? When 
there is one company that has an established rate, does it often hap- 
pen that another companj' comes in and gives us anything cheaper? 
Mr. Hudson writes : 

I am exceediugly interested in Niagara Falls. For 40 years I have been in 
tlie habit of going there. I have never seen aujthing tliat compares with the 
Falls in grandenr. and I have been utterly opposed to diverthig tlie wat<>rs 
from their natural course. 



176 PRESERVATION OF NIAGARA FALLS. 

I think we made a mistake in giving the power Cdmpanies any rights there 
at all. Tliey now use 34.000 cubic feet per second and want 56.000. I feel 
very earnestly that their request should be denied. The enormous amount 
of water that went over the Falls before any of it was diverted was none too 
much, and now hi many places the decrease is noticeable. 

A pretty good statement from a recognized business man. You 
can not say it is sentiment. The other day we were alleged to be 
suffering from neurasthenia. I hope not; but the sentiment of the 
people as it has come to us, as it came lo use in 190G when we first 
took up this matter, and as it has been renewed, caused us to lead in 
the eli'ort to get the Burton bill renewed. 

Mr. Flood. Is it a fact that thev are using ;^4.000 feet? 

Mr. Watbous. He says 34,000 f I should think it would be 26,000. 
He may have stretched that a little. AVhatever they are using, it 
has been sufficient to do more or less damage to the Falls. 

Mr. Flood. Less than half what they proposed to use? 

Mr. AVatkous (reading) : 

I am forced to state that existing diversions have already seriously inter- 
fered with and injured the scenic grandeur of Niagara Falls at the Horseshoe, 
and that this injury and interference will probably be soon emphasized by the 
effects due to the prevalence of lower stages on Lake Erie and the upper lakes. 

The Chairman. Who made that report? 

Mr. AA^vTROus. The Chief of the Army Engineers. 

The Chairman. AA^hat is his name? 

Mr. AA^'atrous. I am not sure. I think at that time the Chief 
of Engineers was Gen. Marshall. It was that statement that led 
us to make such an urgent appeal for the renewal of the terms of 
the Burton bill a year ago, and last June and last August. That is 
the statement of an expert. I believe in the service of experts. Un- 
derstand, we are carrying on a wide range of good work, we think. 
We are urging cities to do comprehensive city planning; we are 
proposing a bureau for our national parks, and we believe in the 
service of experts. In the handling of Niagara Falls we believe in 
experts, and believe we have those experts in our regular department 
of the Army. 

If you want someone to whom you could put more detailed ques- 
tions, I ask you to await the appearance of Mr. McFarland, who is 
in a position to answer tho.se more adequately than I can hope to. 
I know and you know, gentlemen, because you have had expressions 
from them, that the sentiment of the people at hirge is growing more 
and more in favor of recognizing the vahie of tliese scenic wonders 
and particularly of Niagara Falls. 

There are other ways of getting iM)wer that I can cite you if you 
do not know of them already. There is the wonderful power de- 
velo]mient going on in North Carolina where they are developing 
power from small mountain streams without working any great 
injury to any number of people from the scenic standpoint. Do not 
think that we are attacking all ])o\ver propositions. AA> are not. 
AYe have been standing steadfastly for the preservation of Niagara 
Falls, notwith.standiug the demands of the.se great companies who 
wish to make uioney froui them. Only recently we were urged to 
lend a hand to the preservation of certain falls down in Georgia. 
It did not seem to us that it was a national undertaking of sufficient 
iui])oi'tan('e to enlist our attention. AA> have realized that Niagara 



PEESERVATION OF NIAGAEA FALLS. 177 

is the one great thing. You do not need to be told by me that the 
people of foreign countries know only of Niagara Falls when they 
think of scenic wonders in the Unitect States. 

The Chairman. Did j^our civic association oppose the ratification 
of the treaty when it was under consideration? 

Mr. Watrous. AA'e were in consultation — I was not; it was not my 
good fortune to be secretary at that time — with the Secretary of 
State and with the ambassador. We were called upon for our views, 
and we were given to understand that the treaty would very fully 
recognize the demands of the people for the preservation of the 
beautiful. I. am going to tell you frankly that I am not well sat- 
isfied with the treaty. I do not think the treat}' comes up to the 
demands at all. 

Mr. Chair^ian. It is the sui)reme law of the land, is it not? 

Mr. "Watrous. I believe that it is. 

Tlie Chairmax. AVe ought to carry out the treaty. 

Mr. AVatrous. We can do it. There is nothing mandatory about 
the water that may be taken from the American side. It says there 
may be a diversion of 20,000 cubic feet a second, and Congress cer- 
tainly has the power to decide how much of that may be used. 

Mr. Flood. That is a right that is given to American citizens which 
we need or need not exercise as we choose, as we see fit. 

The Chairman. You are firmly of the opinion that the diversion 
of the water is injuring the Falls? 

]Mr. NA'atrous. Yes, sir; I am firmly convinced of that. 

Mr. Cooper. New York is preserving the Palisades, is it not simply 
as a matter of scenic beauty? 

Mr. Watrous. Yes, sir. 

Mr. Cooper. They were blasting them down to secure stone for 
]>aving purposes. 

Mr. FiA)0D. Do you think the diversion of "20,000 feet of water has 
already injured the scenic beauty of the Falls? I understand that 
at this time they are diverting 26,000 cubic feet a second; 15,000 
<;r more on tliis side and 11,000 on the Canadian side. Do you think 
that has already injured the scenic beauty of the Falls? 

Mr. Wa TROT'S. I do; ves, sir. 

:Mr. Flood. Tlien to divert 56,000 

Mr. Watrous. Wou.ld be, I think, very, very injurious. I think 
there is only one way to stoj^ it on the Canadian side. We can not 
tell them what they can do, but we can say that there shall be a 
limit on the importation. 

Mr. Flood. They raised the vested rights question six years ago, 
did they? 

Mr. Watrots. The (juestion as propounded by jNIr. Brown as to 
the vested rights of the companies was very, very thoroughly con- 
sidered. I am told, by the waterways commission and the others 
who drew up the Burton bill, and it has always seemed to us that if 
the companies, believing they had such a vested right, were so thor- 
oughly convinced of it they ought to have put it to the test right 
then and there. They might have saved themselves a great deal of 
money — surely nnich peace of mind and relief from the attacks on 
them. Now, for their peace of mind, whv don't thev put it to the 
test? 

Mr. Brown. Those rights were recognized not only by the Bur- 
ton law but b}' the treat3\ 



178 PEESEEVATION OF NIAGAEA FALLS. 

]\Ir. Watrous. It should be borne in mind. Mr. Chnirmun. that 
when the Burton bill was draAvn it was recognized that tliei-e were 
existing power companies that had put up large amounts of money 
for their plants, and it was for that reason that we mentioned in the 
Burton bill who was to receive the permits. I am going to read 
a paragraph written by our president. 

]\rr. Flood. What is the extent of the life of a power company? 

Mr. Watrois. It is a perpetual charter, as far as the companies 
are concerned. The life of the treaty was to be five years. 

Mr. ScovELL. The law of the State of Xew York provides for 
corporate existence by allowing certain certificates 'whether j'ou 
are chartered by act of the legislature or incorporated under State 
law. 

Mr. "Watrous. I am not prepared, Mr. Chairman, to speak very 
definitely of the Xew York phase of this proposition. It does 
(.ccur to me, though, that as between the States and the Xation 
we have the old-fashioned idea that when the Federal Ciovernment 
is back of a proposition it is back of it a little stronger than when 
it is backed by a State. I presume now that I am getting otf onto 
questions of law that I have not a right to talk on. You know 
how our State policies change. They are likely to be changed very 
often. I do not see any particular reason why Congress should 
give up that jurisdiction. You would have the question of juris- 
diction always before you. 

Mr. Brown. ISIr. Watrous. on what do j'ou base this right of 
Federal control to protect scenic beauty ? 

Mr. "Watrous. They have got the right up there; it is a navi- 
gable stream, and it is a boundary line. 

Let me read this extract from the decision which is cited in that 
Colorado case : 

We s;iy that the creiition of a summer resort is a beneficial use. Is it 
no benefit to tbe public to spend money in making a beautiful place in nature 
visible anrl enjoyable? Is it not in line with public healtb. rest. an<l recrea- 
tion? If a iH'rson t;tkes a stream and, after putting in waterfalls, ponds, 
bridges, walls, shrubbery, and blue-srrass sod, works it into a lieautiful home, 
that is a beneficial use. It is a benefit to the weary, ailing, and feeble 
that they can have the wild beauties of nature placed at their convenienl 
disposal. Is a piece of canvas valuable only for a tent fly. but worthless as 
a painting? Is a block of stone beneficially used when put into the walls of 
a dam and not beneficially used when carved into a piece of statuary? Is 
the test dollars, or has beauty of scenery, re.st. recreation, health, enjoyment 
something to do with it? Is there no beneficial use except that which is 
purely commercial ? 

It would seem that parks and playgrounds and blue grass are benefits and 
their uses beneficial althou,".;h tlien^ is no jirofit derived from tliem : if not. 
then the contention of the defendant corporation must be n\aintained that 
nothing but money-making schemes are beneficial. The world delights in 
scenic beauty, but must scenic beauty disappear because it has no appraised 
cash value? If this defendant corporation takes the water out of Cascade 
Canyon, it can take the water out of the Seven Falls and Cheyenne Canyon, 
and Clen Eyrie, and the beautiful parks, and homes and sunnner resorts of 
the State. We feel compelled to say that there are beneficial uses of the fall 
of wattn- than the mere prodiiction of cc^nnnodities in competition with others 
now existing. When the defendant company says the cnniiihiinants are put- 
ting the fall of the water to no beneficial use, it means that tbe complainants 
are not ruining the beautiful scenery for cash. 

]\Ir. Brown. Did you bear in mind Avhen you cited the Colorado 
decision that in Colorado there is no law of riparian rights? There 



PRESERVATION OF NIAGARA FALLS. 179 

are no riparian rights in Colorado; but tiiere is in New York and 
every 8tate ea.st of the ^Mississippi. 

Mr. Watrous. Those are matters which the States regulate for 
themselves. 

Mr. Brown. You are right. Each State regulates for itself, and 
that is why in C'(;lora(l() there is no ri])arian-rights law and in New 
York there is. 

Mr. Watrous. Colorado changed the situation at one time 

Mr. Brown. Colorado did not change it. The law of appropria- 
tion grew up from the custom which prevailed upon the lands before 
ever the State was organized. That custon evolved into a law, and 
that local law was against riparian rights and in favor of appropria- 
tion, and as such local laAV is recognized by the Federal courts. This 
case you cite is purely one as to rights by prior appropriation. It has 
nothing to do with riparian rights. 

(Thereupon at 5.30 o'clock p. m. the committee adjourned mitil to- 
morrow at '2 o'clock p. m.) 



Committee on Foreign Affairs, 

House of Representatives, 

January "BO, 1912. 
The committee met at -1 o'clock p. \\\. Hon. AVilliam Srdzer (chair- 
man) presiding. 

The Chairman. The committee Avill be in order. 

STATEMENT OF MR. J. WINTHROP SPENCER IN THE MATTER OF 
THE PRESERVATION OF NIAGARA FALLS. 

The Chairman. Mr. Spencer desires to be heard. You may pro- 
ceed, Mr. Spencer. 

Mr. Spencer. I represent those people who are anxious to know 
the facts and their direct measurements in favor of the preservation 
of Niagara Falls. I speak from personal observation on account of 
having made the investigations invself. In order to save time, I 
would ask permission of the chairman to read this paper, and as 
there are a number of figures in this it will be less difficult for the 
reporter if I hand a copy to the chairman, together with several 
photographs wdiich xiave been taken of the Falls. 

The rate of the recession of the Falls, obtained from measurements 
made by Prof. James Hall in 1842, and my own in 1905, was found to 
average -1.2 feet per annum for the whole width of the gorge. Mine 
was the fifth survey. While this figure is the mean rate, there are 
years of no appreciable retreat, during which the soft underlj'ing 
rocks are being eaten away: subsequently the hard upper rocks col- 
lapse. In 1678 Hennepin showed a cross fall the position of Avhich 
we have been able to locate. Thus we know the approximate rate for 
227 years at an average of 4 feet per annum. 

I succeeded in making soundings under the Falls themselves. The 
depth to the fallen blocks is 72 feet. Here the lower beds are all 
soft. The rapids above the Falls descend 55 feet. On account of the 
thickening of the upper hard rocks and the downward slope of the 
lower rocks the rate of recession is diminishing to an average of 2!V 
feet per year. 



180 PRESERVATION OF NIAGARA FALLS. 

You have been told by many gentlemen that the diversion -has 
produced no effect upon the Falls. I have no doubt that they have 
been honest in their belief, particularly as temporary C(mditions 
favored such. A man usually does not see himself o-i-o^vini.- old 
iintil suddenly awakened to the fact, but these ofontlemeu oiler ii') 
grounds for their beliefs, nor were they likely to be in a positi<m to 
give relialile opinions. 

The reason for these statements is based upon the fact that be- 
tween 1908 and 1910 high water prevailed, thus more or less obscur- 
ing the effect of di\'ersion. Thus during the five years, 1906-1910, 
there was a discharge of more than 200,000 gross horsepower per 
second than during the 15 preceding years. The mean stage of water 
during 1911 was low and the discharge fell to more than :2()4,000 
gross horsepower below the average between 1891 and 190."). or if we 
take the average of the month of January. 1911. the diuiinution was 
more than 500,000 gross horsepower. P^very foot of water from 
above the upper rapids represents 2-1 gross horsepower. It is a (jues- 
ticn, then, how nnich of this can be used or wasted. 

Another fundamental point has not been shown to you. Accord- 
ing to the Bruckner law, the cycle of wet and dry years is about 36 
3'^ears. Niagara appears to have two subcvcles. A period of low 
water ended in 1835; high Avater prevailed until 1845: low water 
imtil 1856; high water until 1864: low water until 1875: high Avater 
until 1887: low water until 1902. inclusive: since then high water 
until 1911. During these periods there has been an occasicmal ab- 
normal year. Nineteen hundred and eleven may have been such, 
perhaps due to excessive evaporation, as prevailing low water does 
not seem to be due for some two years more. But 1911 may be the 
beginning of a low-water period ; then the fallacy of the claim of 
no effect upon the Falls will be seen. The mean discharge of the 
river from 190{) to 1910 was 211.000 feet j^er second; the mean dis- 
charge for the 15 preceding years was 204,000 feet per second, and 
for weeks together it may fall as low as 160.000 feet per second. 

The Horseshoe Falls was formerly 2,900 feet in length. On ac- 
count of the lowering of the water, the Canadians have cut off 415 
feet from that end by the construction of the retaining Avail. The 
Chief of Engineers t(;ld you that for the loAvering by 4 inches on the 
KeAv York side the ecjuivalent amount on the Canadian side is 9 
inches, but many people have forgotten this. 

With the full use of the Avater, as under the treaty, the le\cl Avill 
be loAvered on the (ioat Island side by more than 10 inches, and on the 
Canadian 23 inches. This includes the diversion by the Chicago 
Canal, The depth of water for 800 feet adjacent to Goat Island, ex- 
<:epting fissures, varies from less than inches to a foot at the mean 
stage of the 15 years mentioned. I have often seen it so Ioav that 
you could Avalk out on the Ncav York side Avitli perfect safety. With 
such diversion, as is in sight, the International Boundary Line 
would be out of Avater and the remaining ]iortion of the Horseshoe 
Falls Avould be entirely Avithin the Canadian domain. Plate 23 of 
the Engineer's liei)ort sIioavs you how Ioav the Avater is. For three or 
four months during 1911 the Avater Avas as Ioav, or loAver than shoAvn 
in this plate. 

This picture [shoAving first picture] Avas taken in 1900. Where 
these Falls in the picture formerly existed it is noAv simply black 



PEESEEVATION OF NIAGARA FALLS. 181 

rock. Plate II of the Engineer's Report [showing photograph] Avill 
show you this. As I stated before, on several occasions I could with 
perfect safety walk out along here [indicating] on the we^t of the 
Falls. 

3Ir. C'ltne, How deep is the Mater that flows over the Falls at 
that point now ? 

Mr. Spenckr. It varies from a foot to G inches and the maxi- 
mum depth of the water at the crest of the upper rapids is not over 
T) feet at any one point, and the major portion of tlint would be 
less than 7 feet, and where the Falls are deepest. 1 mean on the crest 
of the line, which is the Canadian side, I do not think any part is 
over 8 or 9 feet. As I say on the crest of the rapids above the Falls 
the water does not reach 9 feet at any one point. On the American 
Falls the mean depth is only about 3 feet at the upper rapids. At 
the crest of the Falls it is much less. 

Mr. Cline. AYell. now, will that be seriously affected if they take 
all the water that is supposed to be taken under the treaty, in your 
opinion ? 

Mr. Spkxcek. It will, as will be shoAvn in this paper. 

The question before you is how much the diversion of 4,400 cubic 
feet per second will affect the Falls. Again if you will look at plate 
22 of the Engineer's Report, and compare figures 1 and 2. you w^ill 
see the difference between the effect of 200,000 and 19G. 000 feet, that 
IS the withdrawal of 4,000 feet. During three months of last 
winter not merely was the discharge reduced by this 4.000 feet but 
to double this amount. Now. this is a question that effects 800 feet 
on the Xew York side of the great cataract. The American Falls 
is not effected to such a great degree, but half of those Falls next 
to Goat Island have only a few inches of Avater and I have been 
over more than half of the Falls when partially drained. 

I Avill say here that after four months, three of these continuous 
months, in the w^inter and that is November, the condition Avas even 
worse than is shown here, that is not for one day but the mean for 
those months. If a'ou will again look at this portion of the Engi- 
neer's Report it throws much light upon the subject [exhibiting 
photograph of the Falls]. This photograph was taken vchen there 
was a discharge of 196.000 feet per second [exhibiting another 
photogi-aph]. This photograph was taken when there was a dis- 
charge of .200.000 cubic feet per second. The difference is 4.000 
cubic feet per second. Now. during 1911 there was 19G.000 feet, I 
mean for the whole year, remember, the discharge was efjual onlj'' 
to 192.000 feet per second. Consequently the difference is twice 
Avhat this figure is up here, that is to say — I Avill repeat — the mean 
height of the Avater in 190G was 4.000 feet beloAv what this picture 
^hoAv.-, [indicating]. This picture [indicating] shoAvs 4.000 feet 
below Avhat this picture sIioavs [indicating]. 

NoAv. the .Vmerican Falls is not aft'ectecl to the >ame extent as this 
Nbav York end of the Horseshoe, but the southern half: that is. the 
half next to Goat Island, is only G feet 10 inches deep, so that the 
southern end of the Ajnerican Falls is only a little better off than — 
this portion of the Horseshoe is better off because the Avater is com- 
ing more from the Horseshoe than it is from the American channel. 

NoAv. Avith regard to the subject of the lower rapids. 



182 PRESERVATION OF NIAGARA FA U.S. 

The siiliject of the lower rapids has been mentioned. One of them 
has a lieicht of 51 feet. They are part of the falls of Niagara 
and are visited by just as many people. Tn mairniticence neither 
these nor the rapids above the Falls are inferior to the fallinir sheet 
of Avater. You can not cut off an arm and a lesr of a man and leave 
him intact. But here is another point, if you divert the water from 
the i:)Ool below the Falls you lower its level, which increases the rate 
of recession of the main Falls themselves. The question of the inter- 
national relationship of this water I shall not discuss. 

The mean level of Lake Erie durins: the whole of li>ll was 74 
inches below the level of the precedino- '20 years. A part of this at 
least Avas due to the diversion of the waters. Three of the companies 
take their water from the basin above the rapids, and in doing so 
increase the size of the outlets of this basin. For the large ships 
each inch of cargo, I am told, represents $100 in freight. 

Gentlemen, I am not hostile to the power companies asking for 
more Avater. Let me say that had it not been for the persistent re- 
fusal of the Ontario government I believe that the quantity alloAved 
on that side, under the treaty Avould have been greatly curtailed, 
and as you knoAV two of the poAver companies there belong to Ameri- 
cans. Avho through the Ontario governmer.t haA'e obtained greater 
privileges than those located in Ncav York. While not hostile to 
these companies nor to the Buffalo Drainage Canal, which could 
obtain nearly 3G gross horsepoAver per foot, yet I think that the 
people have a right to a presentation of their side of the question, 
and I have offered you facts Avhich you may take in consideration 
with the subject. If I may be allowed to cite a British anecdote. 
The Earl of Kimberley Avas secretary for the colonies. He took the 
draft of the treaty, after the first Boer War, to Queen Victoria. She 
said, " May I ask you to reconsider, for this will be a fatal mistake." 
He returned; again she pleaded for another reconsideration. He re- 
plied, " It is settled. It is the Avill of the people." She replied. 
" Then I shall sign. But you Avill live to see the day AA'hen Britain 
will regret it." Kimberley said, " We have learned to regret it. Her 
Majesty Avas right." 

Now, gentlemen, let me say that under the full diversion of Avater 
as granted by the treaty, the main cataract will haA'e been been 
reduced to one-half of its breadth, as also one-half of the American 
Falls. The treaty permits a diversion of 28 per cent foK mean dis- 
charge, or 33 per cent, including the Chicago canal. This rises to 
40 per cent during months of low Avater. The extreme disturbance 
on account of wind lasts for only a fcAv hours or a day and may be 
rejected from consideration. IIoAveA'er. for a week in February, 
1909. during Ioav Avater the floAv of the Avater Avas suspended from 
the American Falls and 800 feet of the main cataract, next to Goat 
Island, a forerunner of future conditions. Gentlemen, it is for you 
to consider the facts as related to the Avhole people on the one 
hand, and on the other Avhether it is the advantage to turn Niagara 
into alluminum carbide, etc.. for the other general manufacturing 
uses do not consume an inordinate demand for poAver. The Allumi- 
num Co.. according to the report. Avas foi- years Avorking on a capital 
of $3,200,000. Two or three years ago they were able to i)ay a 
stock bonus of TjOO i)er cent, thus l)ringing the c:ij)ital up to $10.- 



PEESEEVATION OF NIAGARA FAT.LS. 183 

000,000. Tt do^s not ap])oar that tlie American })<'ople received any 
bonus for their Avater. 

Mr. Kendall. Hoav is that hist statement true? 

Mr. Spkxcer. Under the treaty. 

Mr. Kexdall. I heard that, but what did vou sav about 40 per 
cent? 

Mr. Spexcer. When the water is at a low stage, I mean. 

Mr. Kendall. Tlie full discharge of the Falls will be 40 per cent? 

Mr. Spencer. At the low stage of the water, lasting for a month 
or more, and as any variation as to that lasts only for a few hours 
it is not worth considering one way or the other. It might be 
enough to stop the works for a few hours. 

I can show you a photograph of this which you can pass around 
showing the stability of the flow [passing photographs around the 
committee room]. 

Mr. Kendall. But that is a photograph illustrating the situation 
ihere during that week in February, is it? 

Mr. Spencer. Yes; that is prophetic of what is going to happen 
with a full outturn of the power. 

Mr. Kendall. AYell, it is descriptive of what has happened under 
those conditions. 

Mr. Spencer. It has happened under those conditions. It has 
been diminished on two other occasions, but never a stoppage of the 
water on the American Falls occurred until February. Subsecjuent 
to that, the year after, the American Falls were broken up into four 
parts, but I did not get photographs of that. These photographs 
were my own. That is a determination of the water on our New York 
side of the Horseshoe [illustrating]. This also shows the retaining 
wall by which 415 feet are permanently diverted. 

Mr. Cooper. Do you mean that 400 feet out from the Canadian 
side there was a wall erected wdiich prevents the w^ater from flowing? 

Mr. Spencer. Absolutely, for 415 feet, and the wall is shown in 
that picture. Now. I Avill not presume to suggest anything. I sim- 
ply brought these facts to j^ou for your consideration. 

Mr. Foster. Will it interrupt you if I ask you the purpose of this 
I'etaining wall ? 

Mr. Spencer. I will state, as you w'ere told by the Chief of Engi- 
neers, that the greatest efl'ect was on the Canadian side; where it is 
(» inches on the Goat Island side it is 9 inches on the Canadian 
side. When the first poAver plants were established they drew" the 
greatest portion of their water not from the Xew York channel — that 
is, the Ilorseshoe channel — but drcAv the greater part of the Cana- 
dian channel, the result Avas the water floAving l)ack, and before they 
began their Avork, about 1001 — I can not give you the exact date — 
they l)uilt this retaining Avail and filled in Avith earth behind it, and 
it runs along 415 feet at the end of the Falls, so no matter Avhat the 
condition of the rainfall is that has been destroyed to that extent, 

Mr. Foster. By the Canadian GoAernment? 

Mr. Spencer. If you draAv me into the question of the Canadian 
GoA^ernment — it Avas done for a simple purj^ose. Prior to that the 
Avater Avas usually draAvn off from the Canadian side. This Avail 
Avas I)uilt to block the water, and to send it back to the poAver house. 

Mr. Broavn. That was done as a part of the park system— to 
enable spectators on the Canadian side a better vieAv of tiie Falls? 



184 PRESEEVATION OF NIAGAEA FALLS. 

Ml". SrENCER. Xot at all. I was at Niagara Falls practically all 
tlie time this was being coiistructed. and when it was thrown open. 
Now to come to the question 

Mr. Kendall. Before yoii leave that question — the effect of estab- 
lishing that retaining wall was to destroy 415 feet of the Falls, 
was it ? 

Mr. Spencer. Four hundred and fifteen feet of the main Horseshoe 
Falls on the Canadian end of the Horseshoe. 

Mr. Kendall. But there had been a flow of 415 feet of Avatcr over 
that until that time? 

Mr. Spencer. Yes; prior to that time. It took about one and a 
half years before it was completed. 

Mr. Kendall. That was diversion of the water that had ])rcviously 
gone over that wall toward the center of the wall? 

Mr. Spencer. Yes: high water has been lowered by the diversion 
of that water, and it got to be very shoaly. 

Now. it is a question whether it is pleasing to destroy the Falls 
or to exploit the carbide works and those other great consumers 
of power, the aluminum company: and I will mention here, i)erhaps 
some you do not know, according to their report they have been 
working with a capital of only $-200,000. but three years ago they 
Avere able to ])ay a stock bonus of 500 per cent, but the American 
peo])le did not get any part of that bonus. 

The Canadians now charge rental for that water: the American 
people receive none, nor do they receive duty. In an editorial of the 
organ of the Ontario government. January 18. it was stated that 
early in li)ll the margin of possible exports has a long way to go 
before being exhausted, and that the removal. of restrictions would 
.seem to be somewhat superfluous. It is stated that the consumption 
in Ontario is comparatively limited, and that the C^anadian Govern- 
ment can impose an export duty. 

Mr. Kendall. Noav, that means. I take it, that there is plenty of 
water there that may be exported if it is not utilized there. 

Mr. Spexceh. There is plenty of water available under the present 
agreement, and it would be superfluous to give permission to pass 
any more. I should have brought that clipping 1 received only a 
few minutes before I came here, but 1 forgot to bring it down. Now, 
of course, the Canadian (jovernment has the i)ower to apply an 
export duty, as the statement mentions. 

^Ir. Bkoavn. May I ask you this question: The Canadian power 
com})anies have to reserve one-half of their power for sale on the 
Canadian Government ? 

Mr. Spencer. Yes. 

Mr. Brown. And tliey can only export the otlier half of each coni- 
])any. not to the aggregate sums of all the companies, so that if the 
Canadian Power Co. is given the privilege to export one-half of its 
power and the Ontario Co. one-half of its power then there could be 
no export unless there was some other company ready to develop two 
for every one that Avas exported. 

Mr. Spencer. These tAvo companies could increase their i)(>wer of 
production, and by that means they could exjiort more. 

I Avish to say one Avord in regard to the Avork of the International 
Avater-making machine. I have had something to do Avith that. It 
Ava,*^ originated bv the late Andrew H. (xreen. of New York. That, 



PRESERVATION OF NIAGARA FALLS. 185 

was for the special purpose of saving tlie Falls from spoliation. I 
had the honor on several occasions to assist the late Secretary Hay 
and also the late Senator Piatt, so that I am thoroughly informed 
with regard to the methods of that International water-making 
machine. 

Gentlemen. I thank you for your attention. 

Mr. Kendall. Do you represent some civic association? 

Mr. Spencer. I am a member of a civic association. If you wish 
to know how I got in connection with this I will give it to ^^ou in a 
few minutes. 

Mr. Kendall. The only purpose I had was to ascertain the reason 
for your being here this afternoon, which is a very proper one alto- 
gether. 

Mr. Spencer. The reason is this: I began as a young man to study 
the situation at Niagara Falls; later I began to publish for the Ni- 
agara Falls Park Commission. I published a lengthy report. I 
began in 1902, or about that, my association Avith Mr. Greene, and on 
account of this previous association and the fact that I was connected 
with the Avork and other matters relating to Niagara Falls it was 
thought but right that I should have an opportunity to carry on 
scientific investigations. Although an American citizen, I was asked 
by the geological survey of Canada to make a full report upon the 
P^alls. I did not have Ihc facilities that the engineers had in some 
directions. I had more facilities in some other directions. The 
result of that was I published a work of 500 pages on the scientific 
history' of the Falls, a part of Avhich is included in the statistics which 
I have been giving you. I have kept up with the information which 
has been supplied by the engineers department, until the present 
time, consequently I am familiar — there may be some details I do 
not know— but I am familiar with almost ever^'thing of a scientific 
nature concerning the Falls of Niagara. 

^Ir. Kendall. I am glad you made this subsequent statement. I 
think it is valuable. 

The Chairman. Mr. Spencer, will you put into the record ,your 
statement with regard to the recession of the Falls b}' reason of the 
erosion ? 

Mr. Spencer. I shall be very glad to do so, and I therefore hand 
you a copy of my paper on that subject, which, together with what I 
have previously stated, covers the whole question. 

I I'.iill^'tin of tlip (;oiil<)iric;\l Socictv of Vrnpi-icii. NCI. U!. ii. N7-44S. pi. .'.i'-:;-] An- lo. 
I.XTKRRX'PTION IN THK Fl.OW OF THE FALLS OF XlAtiAK.V IX I-'KUKIAUV, VMU. 

(By J. W. .Spencer. Read before the society Dec. 20, 19(»9. ) 

Previous Flucttjations. 

Since I be year isyo, tlie meau level of Lake Erie li.is fallen al)()Ut I foot ' 
'aud the liasin above Goat Island about a foot and a lialf. From that year 
until the end of 3905, the menu annual fluctuations varied scnrcely more than 
T foot, while in one case the mean monthly variation reached nearly 2 feet; 
but during the progress of storms, wlien the Avind has changed to the o])i)osite 
direction, the tluctuations have been found to reach 5 or even U feet. 

' .T. \V. Spt'iiccr : Kvohition of tlio Falls of Xin'-'ara. Ccolo-ii-al Survey of Caiiad.-). [). 



186 PRESERVATIOISr OF NIAGARA FALLS. 

FLrCTUATIONS OF ]90'J. 

During January and the early part of February, 1LMJ9, the hike level was 
below that of the mean, but on February 10 Lake Erie rose nearly 3 feet 
above the mean annual average height (1SS9-1905, inclusive), while in the 
following and succeeding days it fell with a northerly wind to 4 feet below the 
mean (as shown by the records of the gauges as furnished the Fnited States 
Lake Survey*. This was on February 14. At this time the weather was very 
cold. On account of the reduced depth of the wiiter on the upper raiilds, as 
the ice was forming, it remained anchored to the projecting rocks and was not 
carried over the falls; so that the New York channel and the main cliannel to 
about GUO feet outside of Goat Ishind were frozen over, except one small lead, 
which scarcely showed any current where ordinarily it is a rushing torrent. 
It must be emphasized that the ice was not an accumulation of blocks carried 
down from Lake Erie, as often occurs, like in the jam of the following April 
As the blizzard continued, with its falling snow, the lake level fell to the lowest 
on February 14, and almost all of the water beneath the ice was withdrawn 
so that the American Falls of 1,000 feet in breadth were drained, except four 
or hve insignificant streamlets, as shown in plate 'VI. The eastern side of 
the main falls, adjacent to (Joat Island, was drained for S<^iO feet, as may 
be seen in plate 3o, figure 1. The end of the ice-covered rock rim of the first 
cascade of the upper rapids, with the frozen river in front of Goat Island, is 
shown in plate 34, ligure 1. On the Canadian side, the main falls, which have 
already been curtailed by 415 feet, due to iiower diversion, was further drained 
by about 200 feet, as illustrated in plate 33, figure 2. Another photograph, not 
reproduced, shows that in the middle of the main cataract the rocks almost 
reached the surface; but without allowing for these thinly covered masses, the 
total shrinkage of the main falls amounted to a rettuction of the crest line 
from 2.950 feet (in 1901) to 1,000, and the diameter was shortened from 1.200 
feet to less than 800. 

From the foregoing it may be' understood that the cause of Niagara ''run- 
ning dry," as expressed by the newspapers, was due to the recent lowering of 
the river level (partly owing to power diversion), thus permitting the forma- 
tion of the ice barriers, which cut off the reduced supply of water during a 
strong northerly wind, in very cold weather, at a time of the low stages 
of Lake Erie. This condition continued for nenrly a week. Had there been uo 
ice, the extreme effect of the wind would have lasted for only :i day, even if 
the volume of water had been below the normal amount. Tb.e Whirlpool 
Rapids were lowered by many feet, so that the usunl rushing, boiling, pitching, 
torrents seemed tamed, as may be seen in plate 34, figure 2. 

Similar Occurrences. 

Within the historic record the only other times when similar phenomena 
have been seen were the following: On March 29, 1.S4S. the ice from Lake Erie 
blocked the river for one day, as described by the Hon. Feter A. Porter; on 
March 22, 1893, a partial stoppage occurred which also appe.'.red to have been 
due to the blockade of lake ice; and on February 29, 1890, there was another 
shrinkage of the falls. None of these cases were comparable to thnt of 1909, 
when the phenomena lastetl for nearly a week from February 14. With the 
continued draining of the falls, a repetition of these features should be ex- 
pected. In part, they represent what will become a permanent condition, 
owing to power diversion. The above is from my personal observations, and 
the photographs are of my taking or those of Mr. E. Deming Smith, of Niagara 
Falls, who accompanied me. 

Note —In Mnrcli. 1!M0, owinu' to tlio slio:\lin^' (if tin- w.h.ms i.n ilu- iii)i).-r nipids, the 
Ice was ciuifflit and so barricaded tlie New York el,aniicl that ilu' American Kails were 
again damaged, being broken into fonr parts. 

Mr. CooPEU. Do you intend to liave these pliotogniphs i)nt in hi.': 
statement? 

'J'he Cii.MhMAX. Xo; they will not be jirinted. l)ut yon \\\\\i\\i leav!' 
those photographs here. Mr. Spencer. 

Mr. Spencer. They are in the rejiort of (he Enoineers. 



I 



I'HKSliKVATIOX OF NIAGARA FALLS. 187 

I laid on the table the other day a copy of this pamphlet, and if you 
will look at it at this place in here you will see the lines marked 
showing- what has been cut off and the future effect on the Falls. 

liKFKKKNUUJt LEAGUE OF ErIE COUNTY, 

Buffalo, X. ).. Jduuiiry IH, /!II2. 
To tlie lion. Wm. Sulzek, 

ChdiriiHin of the Committee on Foreign Affairs, 

House of Rcijresentatives, Washington, D. C. 

Deak Sik: The city of Biiffnlo in November, lfl05, voted to establisU :i ninnioi- 
pal electric-lighting and power plant for the benefit of the city and its inli.-ibitants. 

In order to get the electric currerit for its municipal distributing j)lant at a 
reasonable price, Bulfalo must get electrical power from Niagara Falls by and 
through a State generating and transmission plant. 

Any further grant by the United States Government of the unused 4,4(K) 
cubic feet of water i)er .«ocond, which, under the present treaty, is ])ermi(ted t(.i 
be diverled on the American side of Niagara Falls, should be granted by the 
General Government to the State of New York. 

Electricity can be produced at Niagara Falls using the imblic waters at a 
cost not to exceed $6 for horsepower per year, and is actur.lly sold to the 
Ontario (JovernmeiU for less than $10 per horsepower jier year. 

Power poduced at the Falls and tansmitted to a much greater distance from 
the Falls than Buffalo is sold for less than the prices charged for like amounts 
of power in Buffalo. 

The distributing company in Buffalo charges the small consumer at the rate 
of .$600 per horsepower per annum, as against the $6 per horsepower, cost of pro- 
iluction at the Falls. 

The several companies which produce, transmit, and distribute electricity 
either liave a community of interest or unite in a policy adverse to the small 
consumer. 

The Niag.-iva Falls Power Co. sells 450.000,000 kilowatts per annum for one 
and a (pia.rter millicnis of dollars. 

The Ciitaract Power & Conduit Co. sells one-third of this amount for 
fj-l .000.000. 

.\nd the Buffalo ({ener;il Electric Co. sells one-twentieth of the first amount 
for .^LOOO.OOO. 

The city of BntTalo can be lighted and heated at night, both publicly and 
jirivjitely. by less than 200.000 horsepower. The scenic beauty of Niagara 
Falls need not be considered at night, and 1,000.000 horsepower could be gen- 
erated on the American side alone, at night. It is suggested that sutiicient 
horser)ower foi- heat and power uses in Buffalo can be generated and trans- 
mitted at night and stored by modern methods for day use hi Buffalo. 

This org.-inization. comr.osed of over 5.000 citizens of Buffalo, and speaking 
for the small Cdiisumer of Buffalo, to whom light and heat at reasonable prices 
are necessaries, respectfully asks that action be taken to modify the existing 
treaty so that the full .-uiionnt of water at Niagara Falls can be used at night ; that 
the same be grant<>d by the General Government to the State on condition that 
it be used for a State generating and transmitting plant, or controlled by the 
Sfale in the interest of the general public or the small consumer. It is sug- 
gested that even if the State of New York will not establish a State hydro- 
electric, generation, and transmission plant tliat all future grants of power 
lie made by the United States Government to the State of New York alone, 
upon the exjiress condition that prices shall not be charged by the producing 
comi>anies greater than prices now charged to the (Jovernment of Ontario, and 
lh:it prices charged by transmission and distributing companies shall be fair 
and reasonable to the small consumer, based on the actual cost of the power 
to these comiiauies and the actual cost of transmiss!(>n and distribution, with 
;'; fair profit added tliereto. 

.\ll of whicli is respectfully submitted. 

iiEEERENnuM Leaoue OF Eru: CorxTY, 
Lewis Stockton, President. 
Frank C. Perkins, 

(UmsuUiun bhiiiiuccr 



160 PRESERVATION OF XIAG.^A FALLS. 

The following tiible was prepared by an American tirui of nuuiiifacturers on 
making investigations for a Canadian location. 

Estimate is based on smallest business possible. Gas is the largest saving in 
Welland's favor, as our busine.-^s requires much heat for forging; but for large 
users of iwwer, that would be the greater factor. As your business increases, 
so, proportionately, do the ad\antages of Welland. 

Comparative statement on stated quantities. 



Localities. 



Cost of 100 
horsepower 
per year. 



"Welland 

Niagara Falls 

Hamilton 

Brantford 

Guelph 

Toronto 



»$15.00 
1 15.00 
1 22.50 
1 22.50 
« 1.000.00 
30.00 
• 25.00 



Natural gas, 
or equiva- 
lent (15,000 
feet per 
day). 



Site 
cost. 



Cents. 



12 ' 
15 I 
20 
20 ' 



(«) 

(') 

87.500 

7.000 

(») 
10,000 



Freight 

rate, steel, 

Pittsburgh 

(20 cars). 



Cents. 



15 
16i 
16J 
17.1 



Soft coal 
(50 tons). 



Hard coal 
(50 tons). 



3.50 
3.35 



Per ton. 


Per ton. 


$2.50 


»4.50 


2.60 


4.60 


3.00 


5.15 


3.35 


5.20 



5.50 
C.OO 



Taxes (10 
years). 



3. So, 000 

(•) 

MOO 
(») 
(*) 

250 



I.,ocalitios. 



Water 
(5,000 gal- 
lons per 
dav). 



Ccnti. 

Welland j 6 

Niagara S'alls ; 10 

Hamilton I 7J 

Brantford 7i 

Guelph 20" 

Toronto 



Switching 
charges 
(40 cars). 



<?2.00 
2.00 
2. .50 
2.50 
2. .50 



Number of 
railways. 



Figures based upon 
these quantities per 
year. 



Cost of ! Extra cap- 
running ] ital re- 
per year. quired. 



$2,800 
2,965 
4.410 
4,415 
5,950 
4,4.50 



%-. ,500 
7,000 
12.500 
12,500 



Capital a I 
5 per cent. 



S55,00O 
Wi.OOO 
90, OOO 
90.000 

I20.(X)0 
90,000 



1 Electricity. -Free. "Fixed. M'ar. ^ Year. •■ Steam plant. '^ Oil phint. 
X. B. Toronto three times as f.ir fi-oni Niagara Falls :,s Rnffalo. 

Mr. Spekcer. With regard to the total use of water, the Cataract 
Co. of Ontario, derivinff its power from the Welland Canal, has an 
immense storage basin. I'^rom the reports of the lawsuit, it appears 
that the diU'eronce between an average consumption of water and 
that during the Peak Load may vary from l.'iO to ."iOO per cent. 

From all of these considerations, so far as general manufacturings 
lighting, and electric railway purposes are concerned, there is no 
reasonable prospect of the Canadian limit being reached in the near 
future. If, on the other hand, the great alluminum, carbide, and 
similar works are to consume the Falls of Niagara, what Avill there 
be left for general manufacturing purposes, employing vast bodies 
of labor, and for domestic purposes? 

Gentlemen, 1 thank you for your attention. I can not begin to 
cover the scientific problems here, they are very complicated. \^\\X I 
am in a position to give you facts, because T myself have made many 
of the surveys and investigations of the Falls, covering years of work 
in the field, with the knowledge of what the engineers have measured, 
so that my work is not even an office compilation, and any further 
information that you desire from me will cheerfully be placed at 
your di>i)osal. but T wish it to be remembered that 1 am not in hos- 



PRESERVATION OF NIAGARA FALLS. 189 

tility to the vested ii<>hts of anyone, but some of the vested rights 
beh^ng to the people. 

The CiiAiiniAN. Are there any other gentlemen present who de- 
sire to be heard this afternoon? 

Mr. Broavx. One question ^Ir. Spencer knows about I might ask 
hiuL 

The Chairman. Yes. 

Mr. Brown. Mr. Spencer, is it not true, or do you understand it 
to be true, that the unwatering of the Canadian end of the crest from 
the Horseshoe Falls prior to the time any diversions for power were 
made upon tlie Canadian side, had piogressed so far that in 1902 
the Canadian Park Commisioners caused 250 feet of the former 
crest, lying at tliat time unwatered. to be filled in for the purpose 
of improving the scenic elfect of that part of the park ? 

Mr. Spencer. I will say that the diversion of the water by the 
Xew York compaines had a fleeted the water on the Canadian side — 
that is, two Xew York companies had so diverted, deflected the 
Avater from the Canadian side that the Avater had receded and they 
Avere compelled to fill that in. But before that the earlier photo- 
graphs shoAv it. and tliis diversion AA-as done on account of the con- 
tinued increase of the loAAerinsf of the Avater on the Canadian side. 

Mr. Broavn. Just a moment. Before 1902 tliere had been no sub- 
stantial diversions upon the Canadian side? 

Mr. Spencer. The loAver end of the water at that time had risen 
from the diversion by the Xew York power companies. 

Mr. Broavn. But prior to 1902 — I am speaking as to back in those 
times — the erosion from the Falls causing a recession of the crest of 
the Falls? 

Mr. Spencer. It AAas the diversion of the Avater. A great deal of 
the Avater on the uj^per rapids is noAv very thin. I haA'e seen the 
time Avhen during extremely Ioav Avater one-fourth of the upper 
rapids haA'e been bare. 

Mr. Broavn. I Avas trying to compare your statement with this one 
made in the Canadian reports of the American engineers. That 
is all. 

The Chairman. Is there a gentleman present Avho desires to be 
heard noAv in this matter? 

Mr. Difenderfer. I suggest, Mr. Chairman, that you call Mr. 
Barton, if he is here. 

Mr. Broavn. Let me say, Mr. Chairman, Mr. Barton Avent back to 
Niagara Falls last night. If you Avould like to hear from him I 
Avill ask him to come here and appear before your committee Tuesday. 

Mr. Difenderfer. He is manager for the Hydraulic Co., is he not? 

Mr. Broavn. Yes: for the Xiagara Falls Co. Mr. Barton can give 
you any information you desire. 

Mr. Difenderfer. I Avould like to (juestion ^Ir. Barton on some 
points T have in vieAV, but I hardly think I Avill re(|uest his coming 
here. 

Mr. Brown. Without any request, upon the statement of tlie com- 
mitteeman, I Avill see that he is here. I am only too anxious to give 
them any figures. 

28305—12 53 



190 PRESERVATION OF NIAGARA FALLS. 

The CiiAiL'.AiAX. We will now be pleased to hear from Maj. AA'il- 
liam B. Ladue, Corps of P^njjiiieers, War Dei)artment, Washinff- 
(oiu I). C. 

Afaj. Laduk. There are only one or two matters that I wish to 
say anything about. The whole subject has been pretty thoroughly 
covered. In the first place let nie say, as was said the other day, that 
the War Department is not in the attitude of urging that it be" given 
charge of the supervision of these permits; but, if the War Depart- 
ment is to supervise the permits it will have to have an appropria- 
tion for that purpose. The Burton Act made an appropriation of 
$50,000 for the necessary expenses for carrying out its provisions. 
When the Burton Act expires, without further renewal, of course we 
will not have any mone}^ available; and foi- any further operations 
which we may be called upon to undertake we will need money. 

Mr. Garner. You had better tell us. Major, how much you will 
need to provide any >^u!)ervision that the AVar Department desires to 
undertake. 

Afaj. Laih-k. I am not prepared at present to give definite figures; 
but I would suggest that the unexpended balance of the appropriation 
made by the Burton Act be reappropriated and made available for 
expenditure, in connection with any legislation Avhich this committer 
maj^ have in view. 

The Chairman. How much is that unexpended balance ? 

Maj. Ladue. About $22,200. as it stands now. In connection Avith 
the operations under the Burton Act the Secretary of War caused 
numerous iuA-estigations to be made and held a number of hearings 
in regard to the issuance of these permits. There is in these reports 
a good deal of matter which is of value, and which I think will be of 
value to the committee, which may possibly not be before the com- 
mittee; and I would propose to leave here, for the information of the 
committee, copies of these various reports, including the decision ren- 
dered by the Secretary of War in 1907, fixing the conditions and 
limits of the original permits. I will simpW lay this on the table. 

The Chairman. Have you got that decision, Major? 

Maj. Ladue. Yes. 

The Chairjian. Well, I think we had better put the decision in the 
record. We will put it in the record if there is no objection. 

Maj. Ladue. I will put a copy in the record. 

The Chairman. Now, if there is anything that you have that is not 
too voluminous that you think ought to go in the record, Major, we 
would be glad to have you put it in the record as a part of 3^our 
remarks. 

Maj. Ladue. I will add this paper. The other papers I have here 
I will simply leave on the committee's table for their information. I 
will also present this set of blue prints showing the variations in the 
levels of the Great Lakes for a number of years. Gen. Bixby desired 
me to present to the committee this data as part of the information 
on the subject, which will be of value to anyone interested in that 
branch of the subject, in connection with the operations under the 
Burton Act. 

Mr. Cooper. One moment. Would not this be very valuable, this 
literature, for the record? 

The Chairman. Very well ; put it in. 



PHKSEKVATION OF NIA(iAKA FALLS. 191 

War Department, 
Washington, .January 18, 1907. 
In the matter of aiiplicatious umlor the Burton Act for the issue of permits to 
divert water for power from the Niagara Falls on the American side and 
to transmit electrical current, developed from water power on the Cana- 
dian side, into the United States. 

OPINION BY THE SECRETARY OF WAR. 

Ten or more applications have been filed in this department for the issuing of 
permits by the Secretary of War, part of them for the diversion of water for 
power from Niagara Falls on the American side, and the remainder for the 
transmission of electrical currents, developed from water diverted from the 
Falls on the Canadian side, into the United States. These applications are filed 
under what is known as the Burton Act. passed June 29, 1906. and entitled 
*'An act for the control and regulation of the waters of the Niagara River, for 
the preservation of Niagara Falls, and for other purposes." 

The first section of the act forbids the diversion of water from the Niagara 
River, or its tributaries in the State of New York, except with the consent of 
the Secretary of War, as authorized in section 2, with a proviso, the meaning 
of which is not here important. 

The second, fourth, and fifth sections of the act I set out in full as follows: 

" Sec. 2. That the Secretary of War is hereby authorized to grant permits for 
the diversion of water in the United States from said Niagara River or its 
tributaries for the creation of power to individuals, comiianies, or corporations 
which are now actually producing power from the waters of said river, or its 
tributaries, in the State of New York, or from the Erie Canal; also permits for 
the transmission of power from the Dominion of Canada into the United 
States, to companies legally authorized therefor, both for diversion and trans- 
mission, as hereinafter stated, but itennits for diversion shall bf issued only to 
the individuals, companies, or corporations as aforesaid, and only to the amount 
now actually in use or contracted to be used in factories the buildings for which 
are now in process of construction, not exceeding to any one individual, com- 
pany or corporation as aforesaid, a maximum amount of eight thousand six hun- 
dred cubic feet per second, and not exceeding to all individuals, companies, or 
corporations as aforesaid an aggregate amount of fifteen thousand six hundred 
cubic feet per second; but no revocable permits shall be issued by the said Sec- 
retary Tuider the provisions hereafter set forth for the diversion of additional 
amounts of water from the said river or its tributaries until the appoximate 
amount tor which iiermits may be issued as above, to wit, fifteen thousand six 
hundred cubic feet per second, shall for a period of not less than six months 
have been diverted from the waters of said river or its tributaries, in the State 
of New Y'ork : Provided, That the said Secretaiy, subject to the provisions of 
section five of this act, under the limitations relating to time above set forth 
is hereby outliorized to grant revocable permits, from time to time, to such 
individutils, companies or corporations, or their assigns, for the diversion of 
additional amounts of water from the said river or its tributaries to such 
amount, if any, as in connection with the amount diverted on the Canadian 
sid«>, shall not injure or interfere with the navigable capacity of said river, 
or its integrity and proper volume as a boundary stream, or the scenic grandeur 
of Niagj'.ra Falls; and that the quantity of electrical power which my by 
permits be allowed to be transmitted from the Dominion of Canada into the 
United States shall be one hundred and sixty thousand horsepower: Provided 
further. That the said Secretary, subject to the provisions of section five of this 
act, may issue revocable permits for the transmission of additional electrical 
power so generated in Canada, but in no event shall the amount included in such 
permits, together with the said one hundred and sixty thousand horsepower 
and the amount generated and used in Canada, exceed three hundred and fifty 
thousand horsepower: Provided always. That the provisions herein permitting 
diversions and fixing the aggregate horsepower herein permitted to be trans- 
mitted into the T'nited States, as aforesaid, are intended as a limitation on the 
authority of the Secretary of War, and shall in no wise be construed as a 
direction to said Secretary to issue permits, and the Secretary of War shall 
make regulations preventing or limiting the diversion of water and the admis- 
sion of electrical power as herein stated; and the permits for the transmission 
of electrical power issued by the Secretary of War may specify the persons, 



192 PRESKKVATION OF NIAGARA FALLS, 

fonipauies, or corporations l-.y whom the same shall he transmitted, and the per- 
sons, companies, or coritorations to whom the same shall he delivered. 

" Si:c. 4. That the I'resiilent of the United States is respectfnllv reqnestml to 
open negotiations with the (Jovernnient of Great Britain for the purpose of 
effectnally providing, hj- suitahle treaty with said (iovernment. for snch regu- 
lation and control of the waters of Niagara lUver and its tributaries as will 
preserve the scenic grandeur of Niagara Falls and of the rapids in said river. 

" Sec. 5. That the provisions <»f this Act shall remain in force for three years 
from and after date of its passiige. at the expiration of which time all permits 
granted hereunder l)y the Secretary of War shall terminate unless sooner re- 
voked, and the Secretary of War is liereby authorized to revoke anv or all 
I»ermits granted by him i>y .inthority of this act. and nothing herein contained 
shall be held to confirm, establish, or confer any rights heretofore claimed or 
exercised in the diversion of water or the transmission of i»ower." 

The third section provides a i)unishment for violations of the act. and the 
method of enforcing it. 

The idain ])ui'pose of the act is to restrict, as far :is lies in the i)ower of the 
Congress, the diversion of the water from the Niagar.i Itiver above tin- Falls in 
such a way as to reduce the volume of the water going over the Falls, and the 
plan of Congre.ss in so doing is to effect this purpo.se of directly prohii)itinf? 
the diversion of water on the American side, and by taking away the motive 
for diverting water (m the Canadian side. l)y denying a m;irk<'t for electrical 
power generated on tlie Canadian side in the United States. The prohibition 
in the act is not absolute. h<»wever. It is clear that Congress wished, so far 
as it could, to accomi>lish its purpose with as little sacritice of the i)ecuniary 
intej-ests of those who had actually made investments, im tlie faith of the 
>(»ntinued unrestri<'ted diversion of water on the American side, or the con- 
tinued uiu-estricted transmission of electrical power from Canada into the 
United States, as was consistent with the preservation of the inti-grity and 
volume of the Niagara River jiassing over the I'alls. 

Tlie Internal ion.il Waterw.-iys Commission, a body ajipointed under a si.-itute 
of the United Slates to ccmfer with a similar body apiiointed under a statute of 
Canada to make rectmnnendations with reference to the control and government 
of tlie waters of the Great Lakes and the valley of the St. Lawrence, have looked 
into the question of the amount of waler which could be withdrawn on the 
American and the Canadian side of the Niagara Rivei without substantial in- 
jury to the cataract as one of the great natural beauties of the world, and after 
a most careful examination they have reported, recognizing fully the necessity 
of preserx ing intact the scenic grandeur of the Niagara Falls, that it would be 
wise to restrict diversion to 28.000 cubic feet a second on the American side of 
the Niagjira River (this to incliule Ki.OOO cubic second feet for the Chicago 
Drainage Canal), and to restrict the diversion on the Canadian side to ;^(>.0()0 
cubic feet a second. This report was in answer to a resolution of Congress 
calling for an expression of opinion, and tliereupon Congress jirovided that the 
Secretary of War should be i)ermitted, hut not recpiired. to issue permits in 
the first instance for the diversion of l.j.tJOO cubic feet on the American side of 
Niagara River and the Erie Canal to persons or corjiorations actually en- 
gaged in the diversion of water and its use for power on that side for six 
niouflis, with leave to increase the same after six months shall have shown the 
effect of such diversion, if it will not .affect tlie scenic grandeur of the Falls. 
Congress furtlier pro\ ideil in the act. with reference to tlie power generated on 
the Canadian side, that the Secretary of War should be authorized, hut not 
required, to issue permits for the transmission of 100,000 liorsejiower from the 
(^anadian side to the markets of the I'nited States, .ind then provided that he 
might issue revocable jiennits for the transmission of a larger amount. lU'ovided 
that the total amount transmitted, together with that generated and used on 
the Canadian side, should nol exceed :!."0.0(H» horsejiower. or the eipiivaleut of 
the diversion from the falls of about 28,(M)() cubic feet of water. 

I liave already siyid that the object of tlie act is to preserve Niagara Falls. 
It is curious, liowever. tliat this purjiose as a limitation upon granting of per- 
mits b.T tlie Secretary of War is only specifically recited in reference to his 
gniuting of permits for diversions of additional amounts of water over lo.GlK) 
cubic feet on the American side. whi<'h are to be limited to " such amount, if 
any, as, in connection with the amount diverted from the Canadian side, shall 
not interfere with the navigable capacity of said river or its integrity and 
proper volume as a boundary stream or the scenic grandeur <«f Niagara Falls." 
This peculiarity in the act is significant of the tentative opinion of Congress 



PRESERVATION OF NIAGARA FALLS. 198 

that 15,(JUU tubie I'cH't of water mi.ylu bv ilivorlcd on tUe Aniericau side and 
100,(>00 electrical borsejiower uiijrbt he trausiuittcd from the Canadian side 
without substantial diminution of the scenic f^randeur of the Falls. T'n- 
doubtedly Couirress left it to the Secretary to reduce this total thus indicated in 
the matter of permits if he differed with this intimation of the congressional 
view. Acting, however, upon the same evidence wliich Congress had. and upon 
the additional statement made to me tit the hearing by Dr. John M. Clark, 
State geologist of New York, who seems to have been one of those engaged 
from the beginning in the whole movement for the preservation of Niagara 
Falls, and wlio has given close scientific attention to the matter. I have reached 
the couelusiou that with the diversion of 15,(j00 cubic feet on the Americjin side, 
and the tnuismission of 1G0,CHJU horse})ower from the Canadian side, the S(ienic 
grandeur of the Falls will not be affected substantially or perceptibly to the eye. 

With respect to the American Falls, this is an increase of but 2.5(X» cubic 
feet a second of what is now being diverted, and has been diverted for many 
years, and has not affected the Falls as a scenic wonder. 

With respect to the Canadian side, the water is drawn from the rivt>r in 
such a way as not to affect the American Falls at all, because the point from 
which it is drawn is considerably below the level of the water at the point 
where the waters separate above (ioat Island, and the waterways commission 
and Dr. Clark agree that the taking of lo.lKK) cubic feet from the Canadian 
side will not in any way affect or reduce the water going over the Anieric.in 
Falls. The water going over the Falls on the Can.idian side of Go.it Island is 
about five times the volume of that which goes over the American Falls, 
or, counting the total as 220.000 cubic feet a second, the volume of the Horse- 
shoe Falls would be about 180,000 cubic feet. If the amount withdrawn on 
the Canadian side for Canadian use were 5,000 cubic feet a second, which ii 
is not likely to be during the three years' life of these permits, the total to 
be withdra\^^l would not exceed 10 per cent of the volume of the stream, and 
considering the immense quantity which goes over the Horseshoe Falls the 
diminution would not be perceptible to the ej^e. 

I have given full hearing to the American Civic Association and to others 
interested in the preservation of the Falls, but nothing has been brought for- 
ward that really has any evidential force to aft'ect the soundness of these con- 
clusions. 

I'.y my direction, Capt. Charles W. Kutz, of the Corps of Engineers, United 
States Ai-my, made an investigation into the circumstances of each corporation 
applying for permits for diversion or transmission. The subjects upon which 
Capt. Kutz was ordered to report are describetl in my memorandum opinion 
of July 14, 190G, as follows : 

"It is necessary that the Secretary of War should know, before final action 
is taken by him, in the matter of permits for transmission, the capital already 
inve.sted in the Canadian companies; the degree of completion of the plant; 
the amount lilvely to be sold on the Canadian side of the current; the time 
when the plant shall be ready for operation ; the amou.nt now actually pro- 
duced; the amount now actually transmitted to the United States; the amount 
invested not only in the production of the current but in the plant and ma- 
chinery for its transmission, including the poles and wives, and all the details; 
and also the capital invested by the American companies who are to receive 
in the first instance the current thus iiroduced; the form in which tliat capital 
is. and the contracts into which they have entered, both witli the Canadian 
companies and with the comi)anies or persons to whom they expect to sell 
the current ; the dates of these contracts, and all the circumstances tending 
to show the extent of the injury that a refusal to grant the permits requested 
would cause to the investment of capital, together with the question of when 
the contracts were made upon the claims for the use of current are based, 
with a view to determining the good faith with which these contracts were 
entered into; and whether the threatened passage of law induced their 
uvdking." 

Capt. Kutz has made a reiwrt both with respect to the companies applying 
for permits on the American side and those applying for permits on the 
Canadian side, and I wish to express my great satisfaction at tlie tliorough- 
ness and spirit of judicial fairness with which Capt. Kutz and those wlio 
are associated with him have done their work. 

Taking up first the applications for permits for diversion on the American 
side, there is no room for discussion or difference. The Niagara Falls Power 
Co. is now using about .S,()00 cubic feet of water a second and producing 



194 PRESERVATION OF NIAGARA FALL?. 

about 7G,G30 liorsepower. TJiere is some question as to the necessity of using 
some water for sluicing. This must be obtained from the 8,UO0 cubic feet 
permitted, and the use of the water for other i)urposes wlien sluicing is being 
done must be diminished. The Niagara Falls Hydraulic Power & >L'uiufa<tur- 
ing Co. is now using 4.(K)0 cubic second-feet, and has had under construction 
for a period long antedating the Burton Act a i)lant arranged to divert 2.."iOO 
subic second-feet and furnish .30,000 horsepower to the Pittsburg Iteduction 
& .Mining Co. A i)ennit will therefore issue to the Niagara Falls Hydraulic 
Power & Manufacturing Co. for the diversion of (5.500 cubic second-feet, and 
the same rule must obtain as to sluicing, as already stated. 

As the object of the act is to preserve the scenic beauty of Niagara Falls. 
I conceive it to be within my power to impose conditons upon the granting 
of these jiermils, compliance with which will remedy the unsightly appear- 
ance that is given the American side of the canyon just below the Falls on the 
American side where the tunnel of the Niagara Falls Power Co. discharges 
and wheie the works of the hydraulic company are placed. 

The representative of the American Civic Association has properly de- 
scribed the effect upon the sights<}er of the view toward the side of the canyon 
to be that of looking into the back yard of a house negligently kept. For the 
pux-pose of aiding me in determining what ought to be done to remove this 
eyesore, including the appearance of the buildings at the top, I shall apiKiint 
a committee consisting of Charles F. McKim, Frank D. Millet, and F. L. 
Olmsted to advise me what changes at an expense uot out of proportion to 
the extent of the investment can be made which will put the side of the 
canyon at this point from bottom to top in natural harmony with the Falls 
and the other surroundings, and will conceal as far as possible the raw com- 
mercial aspect that now offends the eye. This consideration has been kejit in 
view in the construction of works on the Canadian side and in the buildings 
of the Niagara Falls Power Co. above the Falls. There is net reason why 
similar care should not be enforced here. 

Water is being withdrawn from the Erie Canal at the lake level for water- 
power puriwses, and applications have been made for permits authorizing 
this. Not more than 400 cubic feet is thus used in the original draught of 
water that is not returned to the canal in such a way as not to lower the 
level of the lake. The water is used over au-d over again. It seems to me 
that the permit might very well be granted to the first user. As the water 
is taken from the canal, which is State property, and the interest and juris- 
diction of the Federal (icvernment grow out of th(> indin^ct t>ffeot upon the 
level of the lake, the permit should recite that this does not confer any right 
upon a consumer of the water to take the water from the canal without 
auhority and subject to the conditions in\poseil by the canal authorities, liut 
that it is intended to operate, and its operation is limited to confer, so far as 
the Federal Government is concerned, and the Secretary of War is authorized, 
the right to take the water and to claim immunity from any jtrosecution or 
legal objection under the fifth section of the P.urton Act. T shall refer the 
form of the permit v:\th these directions to the International Waterways Com- 
mission to pre])are it. 

I come now to the question of the permits to be granted to the applicants 
for the right to transmit electrical current from plants generating it on the 
Canadian side from the Niagara River. 

The applicants are four: The International Railway Co., which applies for 
a permit for S.OOO horsepower: the Niagar;!. Lockport & Ontario Co.. s])eak- 
ing in its own interest and that of the Ontario Power Co., for 90,000 horse- 
power; the Electric Transmission Co., speaking for itself and the Electrical 
Development Co., for G2,500 horsepower; and the Niagara Falls Power Co., 
speaking for the Canadian Niagara Power Co., for 121 ..')00 horsepower. 

Capt. Kutz recommended that the International Railway Co. be not 
granted anv permit, but that out of the KiO.OOO horsepower 2.r)(i',t l>e reserved 
in order that it might be granted to the International Railway Co. when 
that company shall have otbained ]ierniission from the conunissioners of the 
Queen Vict(H'ia Niagara Park to transmit the current through the park. The 
question of the company's right is pending before the r)ominion Government. 
Some years prior to 1001 this railway company, which owns all the railways 
in Buffalo and neighboring cities and towns, bought :i Canadian electric rail- 
way rtuniing from Chippewa to Queenstown. togethei' with a )ridge just be- 
low the Falls, and one at Lewiston. so as to make a loop with the railways on 
the American side. For this Canadian railway the applicant paid .$1,333,000. 



PEESERVATION OF NIAGARA FALLS. 195 

It had a small power plant located in tlio Queen ^■iel(n•ia I'aik. and under its 
charter it could only use power genei-atod Iherefroni to run the ('anaiiiaii 
railway. In I'JOl this charter was amended so as to permit the use of elec- 
tricity for Its railroads on hoth sides, and the plant has heeu develoiKMl by the 
expenditure of $265,000, so that now it can ,i,'enerate 3,600 hoisepower. ' The 
effective head is OS feet, so that it takes about twice as nuich water to de- 
velop this power per horsepower as in the great plants I shall hereafter 
describe. It Is quite clear that the original investment in the purchase of 
the railway was not made to secure the transmission of electric i»ower across 
the boundary, because there was no power to do so under the charter. The 
subsequent investment of $205,000 can perhaps be said to have been made 
with this in view. Capt. Kutz recommended that 2.500 horsepower be re- 
served for this company. The commissioners of Queen Victoria Park refxised 
to approve the plans of this company for a transmitting line to ihe boundary, 
so that it can not now use the electricity except on the Canadian line, where 
it uses 1.200 horsepower. It generates now 3,000 horsepower. The permit of 
2,500 horsepower would effect a saving of $30,000 a year. The investment 
for transnussion to the United States does not exceed $265,000. All that can 
be reasonably expectetl from the outlay under the circunisiauces is not to 
exceed 7 per cent on the remainder, or about .$1^,000. 'i'he permit should 
not. therefore, issue for more than three-lifths of 2.500 horseitower. or 1,500 
horsepower. The fact that it may generate 8,000 horsepower by the expendi- 
ture of $150,000 I do not regard as important, and I cai'ry out the ))urpose of 
Congress in taking away any motive for making such an investment. The 
amount of 1.500 horsepower will be reserved to await the decision of the 
Dominion Government in the controversy between the International Kaihvay 
Co. and the commissioners of Queen Victoria Park. This leaves out of the 
160.000 horsepower 15S.500 horsepower to be distributed to the other three 
companies. I^et us consider tlieir financial status and prospects. 

The Ontario Power Co. was ini-<)rjiorated in ISST. and theie was no limita- 
tion in its charter upon the amount of power wliich it might generate. Its 
plans, however, were sultject to ihe approval of ihe commissioners of Queen 
Victoria Park, and plans for its works have been iipynoved for 180.000 horse- 
power. The head works for this amount have been constructed and located 
above the first line of rapids. It was necessary under the plans to construct 
three conduits through the park. Only one of these conduits has been con- 
structed, and it has a capacity to supply six generating units, three for 10.000 
horsepower each and three for 12,000 each, or 66,000 horsepower in all. The 
cost to complete ihe six units and thus produce 66.000 is $6,500,000. The 
amount required to complete the plant to the projected size, producing ISO.OOO 
horsepower, would be $6,500,000 additional ; and the amount required to pro- 
duce 120.000 horsepower woull be about $3,200,000. In addition to this, the 
Ontario Transmission Company, an ancillary company to the main i)ower com- 
pany, has expended about $1,000,000 in transmission, riglit of way and plant, 
and the power company has entered into contracts for the fui-nishing of 6.01X) 
horsepower, witli an op; ion by the purchasers to increase this to 13,000 for 
Canadian consumption. The Niagara. Lockport & Ontario Co. of New York is 
affiliated wtih the Ontario Power Co., and has constructed a very elaborate 
transmission plant from the internatiou;',! boundary to Lockport, from Lock- 
port to Pifffalo. and from Lockport by way of Kochester to Syracuse. It has 
expended $2,785,000. of which $1,200,000 was for right of way and $1,162,000 for 
construction. lis capacity for transmission from the international boundary 
to liOckport is (iO.OOO horsepf»wer. and there is the same capacity from Lock- 
port to Buffalo: from Lockport to Syracuse it has a capacity of 10.000 horse- 
power, and a second line of greater capacity is under construciion. It claims 
that its investment will amount, when its transmission lines are completed, to 
upward of $4,000,000. and certainly the expend! ure will reach $3,000,000. 

The Electrical Development Co. leceived a charter. 5 Edward VII. and was 
authorized to take 125.f>00 horsepower, or S.ooo cubic feet a second. The head- 
works, wheel iiit. and tail race have been comiileted for 11 units of 12.500 horse- 
l)Ower each. The junver house has been comjileted for seven units, but the ma- 
chinery installeil and contracted for is only for four units. The completion of 
the four units will involve the expenditure of .$6,300,000. and it may be in- 
creased to 11 units, or 132,000 liorsei>owor, by the expenditure of $1,750,000. 
This comi)auy has erected a tiansmission j^lant to Tonmto which will convey 
20.0iX> horseiiower and that will involve an expe.iditure when completed of 
$2,610,000. The demands for Canadian consumjiiion which this company will 
satisfy are about .30,fW¥> horsepower. There is an electrical transmission com- 



196 PKKSKKVATIOX OF XIAGAKA FALLfi. 

j>;in.v of Aiimricjiii niiu'iii and cliart*'!' attilijitrd witli this L<im[ian.v which has 
expciuUMl a1)()iit $24<i.<MM) jinrl has ji relation to w'lal is called the Nicholls syn- 
dicate, which owns inierests in gas and power conipanies an«l in an ele-tric 
railway company from Bnffalo to Rochester which is under construction. II 
Ims franchises in its own name in s(>\on towns and cities, but the enterprise 
is larjroly inclioate and the investment is in prosjject rather than actual. 

The Canadian Niajiara I'ower Co. was orsjanized in lS<t2 by the same persons 
who were inierestefl in tiie Niasrara Falls I'ower Co.. the pioneer of electrical 
IM>wer companies on the Anierii-an side. It is not limited in tlie quantity of 
power which it is to use. and its plans are suliject to the ai)proval of the com- 
n\issionei"s f)f the Queen's Park. Plans have been approved for 120.tK)<) horse- 
power, which means 11 units of ll,(i(H» horsepower, with one of these as a 
"spare.'' which makes its normal ca]iaci'y IIO.(MX). Its headworks. wheel pits, 
and tailrace tunnel are Cfimpleted for the full development. Five uiiits have 
already been installe<l and its power house and transformer have been com- 
pleted for five imits. It has cost .$r>.r»nO.(KK». and to make 11 miits would cost 
$1.2riO.(M)<) nioiv. It has an underuround conduit connectinj: tiie (^anadian 
planr witii the American jilant of the Xia.sava L'alls Power Co.. with a capacity 
of 12S.(MHi horsepower ti-ansmission, witli cables in it of the capaci y of o2.000. 
It lias a separate Iraiisniission line K; miles alonj; the Niagara River to Fort 
Erie, with towers to cany the lines .icross the rivt'r. all of which transmis.sion 
])lant cost $484,<mK). It sells in Canada 1 .'UO hoxsepowor, with an option to 
pni'chasers to take 4.2;!T horsejiower. 

From what has been said it will be seen that the Ouario Power Co. has now- 
invested or under contract $(;,.■"»(«>.( I' Ml. which will produce 6(»,tM"M» horsepower: 
tJiat it and its attiliated companies have expended Sl.r^KMMiO for transmission in 
Canada.' and about $;'>.<>( m).<((K) for transmission in the rnite<l Stales. 

Ihat the Flecirical Keveloiiment Co. lias invested $(;.80n.0(M). which will 
produce ."O.lMMt horsejvower: an«l a transmission line in Cainul,-! of .$2.rKX).<>0<). 
and perha|is .'j;8()ll.U0t» in transmission lines in the I'nited States. 

That the Canadian .Niagara Power Co. lias invested $ri.3o0.00(). which will 
l)roduce ."l."*,* M M t horseixiw er. and .'iJ.'")< M (.000 in vran.sniission lines in the Unite<I 
States. 

Caj)t. Kutz recommended the allowance to the Ontario Power Co. of a iK^rmit 
for GO.dlM) horsepower: to the Canadian Niagara Falls Power Co. the same 
amount. (JO.UOO horseitower: to the Electri<al Development Co. oT.HOO. 

1 think the Ontario Co. is entitled to a larger allowance than the other two 
companies, because it generates 11.000 liorsepow'er more than the Canadian 
Niagara Falls Co.. and 16,000 horsepower more than the Electrical Develop- 
ment Co. It has invested $200,000 more in its iiower plant than tlie Electrical 
Development Co. and .$1.000,0(X) more than the Canadian Niagara Falls Co. It 
uses for the production of one unit of horsepower perhaps lo jier cent less 
of water than the other two comi>auies. But nK)re than all, it has expended 
$0,000,000 in a transmission line from the international boundary to Rochester, 
S.vracuse, I.ockport. and Rutt'alo. This investmenet i.s almost wholly dependent 
for use and profit on the importation of electricity from Canada. Capt. Kutz 
reports tliat 00.(X)0 horsepower will t-nable the company to secure a reasonable 
r<'turn on the transmission investment after paying a iiroper amount for the 
liower at the boundary, riiis would leave to be dividetl between the other two 
conii)anies 90,000 horsepower, and objection is made to this discrimination 
against them in favor of the Ontario Power Co. iiecauso their plants are so 
arranged that by the expenditure of a million and a quarter the Niagara Co. 
could increa.se iis outinit to 110.000 horsepower, and by the expenditure of a 
million and a half the Development Co. could increase its output to 130.000 
luirsei)ower. whereas the Ontario Co. must ex])end $0.r>(X),OCM) more to reach its 
full capacity of 180,000 horsepower, or abcnit $:5.2(X>,(MW) to reach a capacity 
of 130,000 horsepower. While this circumstance is entitled to some weight 
against jtroportiiming the allowances to the capital actually expended on the 
power plants or the horsepower now produced from the present installations, 
still I thing the considerations already suggested. es])ecially the special expendi- 
tJire for long distance transmission, really outweigh everything else in requiring 
that if possible a sufficient amount be allowed to pay a reasonable jiroht on 
tlnit investment, which is wholly dependent on transmission. 

Connng now to the division between the Niagara Falls Co. and the develop- 
ment company, the conclusion is not so easy. The development company has 
invested about three-quarters of a million more on its power plant than the 
Niagara Co., but under its jiresent installation it can not i>roduce as nmch 
horsepower bv 5,000. It has ex])ended $2,500,000 to carry 20,000 horsepower to 



PKESEKVATION OF XIAGAHA FALLS. 197 

Toronto and has contracts for 10,000 more. The Canadian bushiess does not 
i)a.v as well as the American business, especially that of the Niaj^ara Co.. 
which is quite profiiab^e imder its existing contracts. Considerini; these con- 
tracts, it seems to me thar witli its slight cost of transmission and the advanta- 
geous situation that it enjoys in respect to its affiliated American company, an 
allowance of r)2..5W horsepower for the Niagara Co. will enable it to fulfill all 
its probable demands at a good i)rofit. The works across the river in-oduce 
TtJ.oOO liorsepower, and adding n2..'")00 horsepower malies 128,800 horsepower 
The American company now eanis per cent on its stock of ip4,000,000 nnd 
intere.st on a bonded indebtedness of .$10,000,000. It lias contracts requiring a 
maximum of 102.000 hor.sepower. but the call on its caiiacity lias never excemled 
8.5.000 horsepower, because the calls do not coincide. On the capital invested, 
there is no likelihood tiiat the Niagaia Co. will suffer a loss. It will not make 
as much as it would have made had it been allowed to transmit its full capacity 
after building the contemplatcKl additions to its installation, but the act only 
intended to save tlie investors from losses on tlie plant actually invested, not 
to compensate tliem for prospective gain. 

This leaves for the Electrical Development Co. 46,000 horsepower to transmit 
to the United States after producing 80,000 horsepower and transmitting it to 
Toronto and elsewhere. This would justify the company in increasing the 
number of units in its installation if it could secure transmission to the United 
States. It is probable that the amount is not enough to justify the elaborate 
outlay required for transmission to American customers, and this reduces the 
value of the permit; but I can not think that it will not be able to arrange 
for the disposition of transmissible current at the boundary at such figures as 
to be profitable, even if the amount it makes per horsepower be less than that 
which the two American comiianies realize, because of their greater facility 
for reaching customers, the one through the Rochester transmission plant and 
the other through the American Niagara Co.'s plant and good will. Under 
this arrangement and allotment the Canadian Co. becomes the onl.v one which, 
assuming a demand for its American delivery, will .be justified in increasing 
the capacity of its power plant by installing more units. The demand in 
Canada for tl)e i)roduct of the Ontario and Niagara companies ma.v grow .some, 
but not very nuich, so that they are likel.v to be confined t<> their present 
installation. 

I'efore closing I ought to notice a claim of the Niagara Co. that it lias by 
its charter a jn-eferential right over the other two companies, so that it ought 
to be allowed its full 110,000 horsepower for transmission before the other two 
companies receive permits to transmit any current at all. The preference 
claimed is really only a priority in taking water from the river, and can not 
be reasonably extended to apply to rights to transmit current where there is 
no lack of water for all. 

The Niagara Falls Power Co. and its Canadian other self ask tliat the two 
permits to them sliall contain a provision b.v wliich in case of a reduction of 
the amount of water diverted on tlie American side below the permitted limit. 
a corresjionding increase beyond the limit permitted on the Canadian side 
may be authorized. This privilege must be denied. The American diversion 
and the Canadian transmission must be kept separate in the permits and should 
be absolute and not variable. It would form an uncomfortable precedent in 
other cases. 

It has been asserted by persons who profess to have information that the 
three companies here seeking permits are looking forward to an amalgamation 
of interests or a combination for the purpose of keeping up the prices of elec- 
trical power by avoiding competition that will deny to the public the benefit 
it is entitled to enjoy from the natural water power that these companies 
use at comparatively small benefit to any one of tlie (Tovernments whicli au- 
thorize its use. This is denied by the applicants. ,Tust what effect the exist- 
ence of such a combination ought to have to require a revocation or modification 
of these permits is a matter of grave doubt, but should evidence in proiier form 
of the existence of such combination be l)i-ought to me as a ground for the 
modification of the action now taken, it will be given careful consideration. 

The order for permits will, therefore, be for — 

The International Ky. Co 1..")00 

The Ontario Power Co _ 00,000 

The Canadian Niagara Falls Power Co .".2,500 

The Electrical Pevelopinent Co 46.000 



198 PRESERVATION OF NIAGARA FALLS. 

The Chief of Engineers and Cnpt. Kntz will prepare the i)erniits after con- 
sultation with counsel for the respective companies. An order should also be 
entered detailing Capt. Kutz to report a plan for the supervision of the opera- 
tion of these companies under the permits, with a view to secure strict conipli- 
anr'o with their terms. 

W. H. Taft. 
Secret n IV of War. 
.Tanvary is. 1907. 



A BILL For the control ;ind rcnulat ion of tlu- wnlcrs of Ni:i;r:ii;i Kivor. for Iho pri-sor- 
vnrion of Niagara Falls, and for other purposes. 

Be it enacted hy the Senate and House of Representatives of the United 
States of America in Congress assembled, That the diversion of water from 
Niagara River or its tributaries, in the State of New York, is hereby prohibited, 
except with the consent of the Secretary of War as hereinafter authorized in 
section two of this Act : Provided, That this prohibition shall not be inter- 
preted as forbidding the diversion of tlie vratevs of the (Jreat Lakes or of 
Niagara River for sanitary or domestic purposes, or for navigation, the amount 
of which may be fixed from time to time by the Congress of the T'nited States 
or by the Secretary of War of the United States under its direction. 

Sec. 2. That tlie Secretary of War is hereby authorized to grant permits for 
the diversioTi of water in the United States from said Niagara River or its 
tributaries for Ihe creation of power to individuals, companies, or corporations 
wliich are now actuall.v producing power from the waters of said river, or its 
tributaries, in the State of New York, or from the Erie Canal: also iiermits for 
the transmission of power from the Dominion of Canada into the United Slates, 
to companies legally authorized therefor, both for diversion and transmission, 
as hereinafter stated, but permits for divei'sion shall be issued only to the 
individuals, companies, or corporations as aforesaid, and only to the amount 
now actually in use or conti-acted to be used in factories the buildings for 
which are now in process of construction, not exceeding to any one individual, 
company or corporation as aforesaid a maximnm amount of eight thousand six 
hundred cubic feet per second, and not exceeding to all individuals, companies 
or corporations as aforesaid an aggregate amount of fifteen thousand six hun- 
dred cubic feet per second : but no revocable permits shall be issued by the said 
Secretary under the pi-ovisions hereafter set forth for the diversion of addi- 
tional amounts of water from the said river or its tributaries until the approxi- 
jnate amount for which permits may be issued as above, to wit. fifteen thousand 
six hundred cubic feet per second, shall for a period of not less than six months 
have been diverted from the waters of said river or its tributaries, in the State 
of New York: Vrorided, That the said Secretai-y. subject to the provisions of 
section five of this Act, under the limitations relating to time above set forth is 
hereby authorized to grant revocable permits, from time to time, to such indi- 
viduals, companies, or corporations, or their assigns, for the diversion of addi- 
tional amounts of water from the said river or its tributaries to such amount, if 
any, as. in connection witli the amount diverted on the Canadian side, shall not 
injure or intwfere with the navigable capacity of said river, or its integrity 
and proper volume as a boundary stream, or the scenic grandeur of Niagara 
Falls; and that the quantity of electrical power which may by jiermits bd 
allowed to be transmitted from the Dominion of Canada into the United States, 
shall be one hundred and sixty thousand horsepower: Provided further. That 
the said Secretary, subject to the provisions of section five of this act. may 
issue revocable i)ermits for the transmission of additional electrical jiower so 
generated in Canada, but in no event shall the amount included in such permits, 
together with the said one hundred and sixty thonsjind horsepower and the 
amount generated and used in Canada, exceed three hundred and fifty thou- 
sand horsepower : Providing ahrayx. That the ])rovisions herein pei'mitting diver- 
sions and fixing the aggregate horsei)ower herein permitted to be transmitted 
into the T'nited Stales, as afores:iid. are intended as a limitation on the author- 
ity of the Seci-etary of War, and shall in no wise be construed as a direction to 
said Secretary to issu(> i)ermits. and the Secretar.v of W.-ir shall make regula- 
tions preventing ov limiting the diversion of water and the admission of elec- 
trical power as herein stated; and the permits for the transmission of elec- 
trical i>ower issued by the Secretary of War may specify the persons, com- 
jtanies. or corporations by whom the same shall be transmitted, and the i)er- 
sons, companies, or cori>orations to whom the same shall be delivered. 



PRESERVATION OF NIAGARA FALLS. 199 

Sec. 3. That any person, company, or corporation diverting water from the 
said Niagara Kiver or its tributaries, or transmittinj^ electrical power into the 
United States from Canada, except as herein stated, or violating any of tlie 
provisions of this act. shall be deemed ^lilty of a misdemeanor, and on con- 
viction thereof shall be punished Ity a fine not exceeding two thousand live 
liundred dollars nor less than tive hundred dollars, or by imprisonment (in the 
case of a natural person^ not exceeding one year, or l)y both such i)unishments. 
in the disciotion of the court. And, further, the removal of any structures or 
parts of structures erected in violaticm of this act, or any construction incidental 
to or used for such diversion of water or transmission of power as is herein 
prohil)ited. as well as any diversion of water or transmission of power in vio- 
lation liere<^)f, may be enforced or enjoined at the suit of the United States by 
any circuit court having jurisdiction in any district in which the same may be 
located, and proper proceedings to this end may be instituted under the direc- 
tion of the Attorney General of the United States. 

Sec. 4. That the President of the United States is respectfully requested to 
open negotiations with the Government of Great Britain for the purpose of 
effectually providing, by suitable treaty with said Government, for such regu- 
lation and control of the waters of Niagara Kiver and its tributaries as will 
preserve the scenic grandeur of Niagara Falls and of the rapids in said river. 

Sec. 5. That the provisions of this act shall remain in force for three years 
from and after date of its passage, at the expiration of which time all permits 
granted hereunder b.y the Secretary of War shall terminate unless sooner re- 
voked, and the Secretary of War is hereby authorized to revoke any or all 
permits granted by him by authority of this act, and nothing herein contained 
shall be held to confirm, establish, or confer any rights heretofore claimed or 
exercised in the diversion of water or the transmission of power. 

Sec. 6. That for accomplishing the purposes detailed in this act the sum of 
' fifty thousand dollars, or so much thereof as may be necessary, is hereby ap- 
])ropriated from any moneys in the Treasury not otherwise appropriated. 

Sec 7. That the right to alter, amend, or repeal this act is hereby expressly 
reserved. 

Approved, June 29, 1906. 

Maj. Ladue. There is another matter that I feel some hesitancy in 
touching on, since it affects only the scenic beauty of the Falls and 
\dcinity, which is a subject not altogether in my line. In granting 
these permits in 1907 the Secretary of War incorporated in them 
certain conditions as to the restoration of the scenic beauty of the 
Falls and the Gorge. I may say that these conditions have l)een 
fully and wholly lived up to by the power companies. They haA'e 
done everything that the War Department has asked them to do in 
this matter. To assist him in deciding what these conditions should 
be and what the companies should do, the Secretary of War engaged 
the services of several eminent artists and others under the designa- 
tion of the Niagara Falls committee. The report of that committee 
is in this document (H. Doc. No. 246). It appears to me desirable, 
although I haA^e no instructions from the Secretary of War to this 
effect, that in the legislation that is adopted there should be some pro- 
vision which will justify continuing this committee in existence, or 
at least that it be so drawn as to not legislate the conmiittee out of 
existence. 

The Chairman. Are these commissioners paid by the Government 
now ? 

]Maj. Ladle. There have been some fees paid to certain of the meui- 
bers of the committee for particular services. Their service on this 
committee is a work of love to a certain extent, and on account of the 
fact that they are very much interested in this subject, the fees that 
they are satisfied to receive are very much less than the fees they 
would receive for any such services in other employments, but they 
do receive small fees for their attendance on the committee. 



200 PRESERVATION OF NIAGARA FALLS. 

Mr. Kendall. About how many. Major, constitute this committee? 

Maj. Ladle. I believe there are four! 

Mr. (Jarneh. That is not the National Waterways Committee, is it? 

^laj. Ladue. No, sir. 

Mr. Foster. AVhat are their names? 

Maj. Ladle. Their names are: Mr. Frank I). Millet. Mr, Frederick 
Law Olmstead. Maj. .John S. Sewell. and Maj. Charles Keller. Maj. 
Keller was ai)pointed in ])lace of Mr. McKiuL Avho died. 

Mr. (tarner. Could you estimate. Major, how much thi- couHuitteo 
has o^otten up to date? 

]Maj. Ladle. The total expenditure on account of the committee, 
including expenses of every kind, from 1907 to date, has been 
$3,627.80. 

The Chairman, Major, will you be ffood enough to be liere next 
Tuesday morning? 

Maj. Ladue, Yes, sir. I shall be pleased to do so. 

Mr. Garner. Major, with the permission of the chairman. I want 
to say I believe it was yesterday, or the day before, there was some 
discussion about a permit that has not been utilized. Have you 
any additional information about that matter that you could give 
to the committee? 

Afaj. Ladlte. T know nothing further than I knew the other night. 
In what particular? 

jMr, Garner, Well, if I could. I would like to have some reason 
given to the committee why a permit has been in existence for five 
years, and the company to which the permit was given has not 
utilized it to bring power into the LTnited States. The permit has 
only been utilized by other companies to the extent of 10.000 or 
12.000 horsepoAver. whereas it a])peared from the statements of the 
gentlemen from AVindsor. Ontario, that applications are now on file 
with the War Department asking for 25,000 horsepower to go into 
Detroit, Mich., and that application had been refused on the ground 
that the full extent of the permit had been already granted. 

!Maj. Ladl'e. The Burton law^ was limited by its terms to three 
years. It authorized the Secretary of AVar to grant permits for 
certain things — for the diversion of a certain amount of water and 
for the importation of a certain amount of power. In addition to 
these specified amounts, it authorized the Secretary of A\'ar. under 
certain specific conditions, to grant additional revocable permits for 
importation of additional power, I was not connected with this 
work at the time, but I presume that it has been generally considered 
that these permits, which were granted after a Aery thorough in- 
vestigation and consideration of the claims of the various compa- 
nies, were intended to remain in force as long as the Burton law 
remained in force, unless there should be some very good and com- 
pelling reason for their revocation. As I say. I give that as my view 
of the matter, but as far as I know the question has not been raised 
until this hearing. The Burt(m law has been extended two or three 
times, until now it has been over four years since these permit.s were 
originally granted, but I presume the same thought has been in the 
minds of those who have had to do with this matter, that it Avas the 
probable intent of the Burton laAA', as Avell as the intent of the per- 
mits given under that laAV. that these permits should last as long 
as the Burton law lasted, unless some good reason for their re\'oca- 



PEESEEVATION OF ^'IAGAKA FALL&. 201 

tion should appear. So far as I know, there has been no question 
as to this permit of the Electrical Development Co. until recently. 

Last 3'ear, in 1911, this Detroit company applied Jor a permit to 
transmit additional power into the United States at Detroit. They 
were told that the full an)ount of the 1G0,000 horsepower authorized 
by the Burton law was covered b}'^ existing permits. They were also 
told that there was a provision in the Burton law by which addi- 
tional revocable permits mig'ht be granted under certain conditions 
specified. Those conditions were, as we informed the company, iirst, 
thai such permits must be granted to companies legally aMthoiized 
to do the business ^^hich <hey proposed to do; scv-oud. that the sum 
total of all permits for iuiportation of power, including the IGU.OOO 
horsepower already spoken of, and all power geuerated and used in 
Canada, should not exceed 350,000 horsepower. We also told them, — 
i'.nd this is not in the Burton law. but is based on the treaty — that 
they would also be required to show that this additicmal power which 
the}'^ desired to import could be obtained without increasing the diver- 
sions on the Canadian side above oO.OOO feet per second. 

The representative of the ccnnpanj^ is luit here and I am not con- 
\ersant with the motives of the company, but they dropped the 
matter at the time. The Burtori Act, of course, was about to expire, 
and, that fact ma3' have had some influence on their action, but I ajii 
unable to say. At any rate, they droi>ped the matter at ilie time. 
Recently, however, tliey have renewed their application for a permit 
for transmission of this additional power. With this new applica- 
tion they have given u> the information that we asked for. They 
have shown us that they are legally authorized to do the business. 
They have .shown us copies o^' (heir charter and contracts for the 
power. They have given us figures, which are verified by our 
records, showing that the o^O.OOO horsepower limit of the Burton Act 
will not be exceeded. They have also given us figures, which are 
verified by our recoids. bhowing that the diversion will not exceed 
the legal limit iii Canada. The matter now becomes one of policy. 
Legall}^ the permit can be gi anted, I'he question of policy rests with 
the Secretary of War, and is under consideration now. 

Ml. Garnkk. Has any other company applied for a ]>ennit to bring 
power in from Canada'^ 

Maj. Ladue. I recall no recent application from any other com- 
pany. Some years ago there were some applications, but as J recall 
the matter none of thein came to the point of being formally acted 
u])on by the Seci-etary of W^ar. 

Mr. Garner. In construing the Burton act as giving a permit per- 
manency during its life, if it v»ere shown to you and to the War 
Department that the company that had the permit was not using it, 
would you still think that the Burton act contemplated, because you 
issued that permit,. that you must keep it in existence during the life 
of that law to the exclusion of others? 

Maj. Ladie. Not at all. I consider that if such a matter were 
formally presented it would be a question for consideration: and if 
the case were strong enough, if a proper case were made out, I would 
consider that under the law the permit might be revoked. There is 
no doubt that the permit is subject to revocation at any time under 
the act. It simply becomes a question of policy. 



202 PEESERVATION OF NIAGARA FALLS. 

Mr. Garner. And then it resolves itself into a question of whether 
it would be proper policy for the Government to revoke a permit 
and f^rant it to someone else? 

Maj. Ladtk. That is as I understand the matter. 

Mr. Garner. There is one company to Avhich a permit was granted 
five years ago that has never utilized this permit as to selling its 
power, but another company has been im]:)orting it into the United 
States. 

Maj. Ladue. There is one which is not now utilizing its j^ermit. 

Mr. Cooper. ^Vhat company is that ? 

Mr. Ladie. The Electrical Development Co. 

Mr. Cooper. Where did it get its charter? 

Maj. Ladue. The Electrical Development Co. is a Canadian cor- 
poration Avhich develops power. Of course, the j^ermit is not granted 
to the Electrical Development Co.. but to its associates on this side. 

Mr. Cooper. 'NMio are they? 

Maj. Ladue. The Cataract Power & Conduit Co. of Niagara Falls 
and to the Niagara Falls Electrical Transmission Co.. and to such 
other distributing agents as the Electrical Development Co. may 
designate. 

Mr. Harrison. Their charter was granted in 1908? 

Maj. Ladi'e. Investigations before the permit was given showed 
that the company on the American side had gone to some expense to 
prepare its plant for the utilization of the i)ower. and that at that 
time they were as much entitled to it as anybody else. Why they 
have not utilized it I do not know. 

Mr. Garner. ]Major, do you know the officers and members of tliat 
company? Have you a record of them? 

Maj. Ladue. We can certainly get it if we have not got it. 

Mr. Kendall. Gen. Greene, do you know who they are? 

Gen. Greene. The permit gives the right to the Electrical Develop- 
ment Co. and to all the companies to whom they see fit to sell it. 
That is in the re])orts of the War Department, is it not? The permit 
reads as follows: 

August 17, 1907. 

To the Niiicjiia Falls Electrical 'I'miisiiiission Co.. and to the Cataract Power 
& Conduit Co.. and to such othor distributins ajrents of companies in the United 
States as the Electrical Develoiunent Co. of Ontario (Ltd.) may designate to 
HH-eive from the said Electrical Dovelo)mient Co. of Ontario (Ltd.) at the 
international boundary line and to transndl into the United States 4G.000 elec- 
trical horsei)ower, provided that a part of such electrical power may be received 
by the Cataract I'ower & Transmission Co.. at the international boundary over 
the power transmission lines of the Canadian Niagara Power Co., and that the 
remaining part of such electrical power may be transmitted into the United 
States over transmission circuits thereafter to be approved by the Chief of 
Engineers, and may be received by the said Niagara Falls Electrical Trans- 
mission Co., or such distributing agents or companies in the United States as 
the said The Electrical Development Co. of Ontario (Ltd.) may designate. 

Mr. Garner. I believe you have purchased some power from this 
company that had the permit ? 

Gen. Greene. Never: except one or two hours in the winter when 
our manufacturing load was a little more than our powerhouse could 
take care of. 

Mr. Garner. ^Yho did purchase this power? Do you know? 

Gen. Greene. Well, it is common report that the Cataract Power 
& Conduit Co., of Buffalo, is purchasing power from them. That 



PRESERVATION OF NIAGARA FALLS. 208 

contract was made public in reports of the Canadian park commis- 
sioners. It ran, as 1 recall, for three years, from 1907 to 1910, and 
was for one unit or such part of it as the Cataract Power & Conduit 
Co., of Buffalo, might Avish to use, the maximum power of the unit 
being about 12,000 horsepower. 

Mr. Garner. Do you remember anything, General, about what 
price the contract for that power called for? You stated that the 
contract was made public? 

(ien. Greene. I was not strictly accurate. xV reference to the con- 
tract was made public. T never saw the price and I do not know^ what 
it was. 

Mr. Garner. You do not know Avhere we could get information as 
to the price they paid for this power? 

Gen. Gkeene. I do not know except from the officers of the Cat- 
aract Power & Conduit Co., or the officers of the Buffalo Electrical 
Development Co. 

JNIr. Garner. 1 was speaking about any one in this city? 

(tcu. Greene. I do not think the War Department has it. 

You asked me, I think, as to the officers. The report further says: 

The Electrical Development Co., under a contract which expired June 20, 
1911. formerly transmitted power to Terminal B station at Buffalo in par- 
allel with the Canadian Niagara Power Co. The load was continuous, being 
the peaks for short periods of the day only. These peaks reached a maximum 
of 9,000 to 10.000 horsepower. .Since the expiration of the contract no power 
has been exported from the plant of the Electrical Development Co. 

Xo contract has been made with the Electrical Development Co. 
since the expiration of this contract. 

You asked me as to officers of this company; they live in Toronto, 
Canada, and are as follows: Mr. Robert J. Fleming is the general 
manager; I think Sir William McKenzie is president, but am not 
perfectly sure; he is the principal owner. 

Mr. Goodwin. It is ascertained that after a life of 50 years one 
of these leases had expired and was renewed for 999 years; now is 
that correct ? 

Gen. Greene. I think it is a little in error, sir. I think it said 
that the charter of a New York corporation which originally ran for 
oO years had been extended to 999 j^ears. Was not that it? 

Mr. Goodwin. Well, possibly it was in that form. Well, now, is 
that charter irrevocable if it should be ascertained, if we could 
ascertain the quantity of water that would flow from the cataract? 

Gen. Greene. I do not knoAv as to the company ; I can tell you as 
to the charters of the companies I am connected with. The con- 
tracts with the Park Commissioners, including the right to occup)'^ 
their land and use the water going past their lands, in which they 
are riparian owners, run for 50 years beginning with 1900, together 
with three renewals of 20 years each, at a price to be agreed upon in 
each case, or settled by arbitration. The price for the first fiscal year 
is fixed. 

Mr. Goodwin. It seems to me it would be contrary to public policy 
to make a renewal of such extended length as practically 1,000 years. 

Gen. Greene. That is the charter, the right to do business; but the 
contract I speak of, or the right to take the water on the Canadian 
side, is 50 years, with the privilege of three renewals of 20 years each. 

Mr. Goodwin. What is it on the American side? 



204 PRESERVATION OF NIAGARA FAI/LS. 

Gen. (tKeene. On the American >icle tlie eharter is perpetual, but 
the>' claim the right of ownership in the riparian rights to the waters 
of Niagara Falls, just the same as in the ownership of their land. 

Mr. Brown. That is covered under the New York laws. 

The Chairman, You can proceed, Maj. Ladue. 

Maj. Ladue. I have nothing more to say. unless the committee de- 
sires to ask me any ({uestions. 

Mr. Garner. Major, have we any way, if 1 understand (ren. 
(ireene's and your statements, of ascertaining the compensation that 
this electrical company that had the permit to import the power, 
received for transferring this permit to some other company? 

Maj. Ladue. L think we have no record in the A>'ar Department of 
any such matters. I do not tmderstand that thev transferred their 
permit. 

Mr. (tar>;er. Well, if I understand it. they did not i)roduce power 
and import it, but they sold power. 

(iren. (iReene. Yes: they produced the ))ower and sold it to the 
Cataract Power & Conduit Co., of Buti'alo, as this long contract I 
gave yoti gave them the right to do: but what price they got I do 
not know. I suppose you can summon the officers of the Cataract 
Power & Conduit Co. here and they will tell you. 

Mr. Garner. I was trying to get at Avhat profit this company that 
had the permit to import the power into the United States and did 
not utilize that permit, made out of the ))ermit. That is what T 
wanted to get at. if possible. 

Maj. Ladi'e. I am unable to give any information on that subject. 
I do not think we have any source of such information. 

Mr. Cooper. AVheii do ycai expect that report. House Keport Xo. 
246, to be printed 'i 

Maj. Ladie. We heard from the Government Piinting Office that 
it was likely to be out this afternoon. 

The CiiAHoiAN. T called up the Government Pi-inting Office and 
the Public Printer told me they were rushing the work. We will 
have it here before the hearings close. 

Mr. Harrison. T ask for information. ILas the report of the In- 
ternational Waterways Conmiissitm been made a part of this record? 

The Chairman. It has not been. 

Mr. ILarrison. It appears to me it ou^ht to be made a part of this 
record. I have read that report and it is very interesting. I find it 
in the hearings before the Committee on Rivers and Harbors in 1006. 

The Chairman. Have you got it, Mr. Harrison? 

Mr. Harrison. Yes; it is in this book here. 

The Chairman. How many pages? 

Mr. IIarrison. It is not very long. About eight pages. 

The Chairman. If there is no objection, that report can be incor- 
porated in the record of these proceedings, and it is so ordered. 



PRESERVATION OF NIAGARA FALLS. 205 

[Senate Document No. 242, Fifty-ninth Congress, first session.] 

Rei'ort of the American Members of the International Waterways Com- 
5IISSI0N, WITH Letters from the Secretary of State and the Secretary 
OF War Including Memoranda Regarding the Preservation of Niagara 
Falls. 

To the Senate and House of Representatioes : 

I submit to you herewith the report of the American members of the Interna- 
tional AVaterways Commission regarding the preservation of Niagara Falls. I 
also submit to you certain letters from the Secretary of State and the Secretary 
of War, including memoranda showing what has been attempted by the De- 
partment of State in (he effort to secure the preservation of the falls by treaty. 

I earnestly recommend that Congress enact into law the suggestions of the- 
American members of the International Waterways Commission for the preser- 
vation of Niagara Falls, without waiting for the negotiation of a treaty. The 
law can be i)nt in such form that it will lapse, sa.y in three years, provided that 
during that time no international agreement has been reached. But in any 
event I hope that this Nation will make it evident that it is doing all in its 
power to preserve the great scenic wonder, the existence of which, unharmed^ 
should J)e a matter of pride to every dweller on this continent. 

Theodore Roosevelt. 

The White House, March 21, 1i>06. 



Department of State. 

Washington, March 24, 1906. 
Dear Mr. President : I return the letter of the Secretary of War with the 
report of the American members of the International Waterways Commission, 
regarding the preservation of Niagai'a Falls. 

I think the legislation recommended by the commission would be very useful. 
Faithfully, yours, 

Blihu Root. 



War Department. 
Washington, March 20, 1906. 

"My Dear Mr. President: I herewith transmit, for submission by you to 
Congress, the reiiort of the American members of the International Waterways 
Commission, made by them in accordance with the joint resolution approved 
March 15, 1906, and set out in their report. The recommendations of the com- 
mission of legislation necessary and desirable to prevent the further depletion 
of water flowing over the Niagara Falls suggests the question whether such 
legislation is within the limitations of the legislative power of Congress, when 
applied to nonnavig.-ible parts of a stream which is within the borders of a 
State and which i,s only partly navigable, if the use of the water to be inhibited 
does not affect navigation in the navigable part of the stream below. It would 
seem that the treaty power exercised by the President and Senate with respect 
to a stream which forms the boundary between this country and another 
would be subject to less limitation in this regard than the legislative power of 
Congress, and therefore that it might be more advisable to" effect the result 
sought by Congress through a treaty than through a statute. 
Vevy respectfully. 

W. H. Taft, Secretary of Wan 

The President. 



REPORT or rilE AMERICAN MEMBERS OF THE INTI:RNATI0NAL WATERWAYS COMMIS- 
sion regarding the preservation of niagara falls. 

International AVaterways Commission, 

Office of Chairman American Section. 

Washington, D. C. March 19, 1906. 
Sir: 1. The American members of the International Waterways Commission 
have the lnnuir to submit for transmittal to Congress this report, in compliance- 
with the following joint resolution approved March 15. 1906: 

"Resolved hi/ the Senate and House of Representatives of the United States 
of America in Congress a.ssemhled. That the members representing the United 

28305—12 14 



206 PBESERVATION OF XTAOARA FALLS, 

States upon tho Intcrnatioual (Commission creiitod by section four of the river 
and harbor ace of June thirteenth, nineteen hundred and two. be requested to 
report to Congress at an ei.rly liay what action is in their .ludgment necessary 
and desirable to prevent the further depletion of water tlowinjr over Niagara 
Palls: and the said members are also requested and directed to exert, in con- 
.luncticn with the members of said connnission representinsi the Dominion of 
Canada, if iiractieaiiie. iill [lossible efforts for the preservation of the said 
Niagara Falls in tiieir natural condition." 

2. The suriilus waters of Lake Erie are discharge-d through ilie Niagara 
Kiver into Lake Ontario, the mean level of I>ake Erie being r>72.S(i fet-t and 
that of Lake Ontario being 240.GI feet above the sea. Leaving I>ake Erie at 
Buffalo, the ri\er is navigable and flows with a moderate sjope to a short 
distance below Welland Jiiver. or (Miiiiiiewa Creek, about 10 miles, in which 
distance it has a fall of .^bout 14 feet. The slope here is suddenly increased 
and (he river ceases to be niivigaltle In the next hnlf mile it has a fall of 
about 50 feet, forming the rapids above the falls. It is divided by Cloat Island 
into two arm.s of unequal size, that on the Canadian side carrying tdtout seven 
times the volume of water carried bj-. that on the American side. At the foot 
of Goat Island the waters of both arms plunge over a vertical precipice, con- 
stituting Niagara Falls jnoper. that on the Can- dian side being usually known 
as the Horseshoe Fall, and that on the American side as the American Fall. 
The height of the Horseshoe Fall is about 1(51 feet and that of the American 
Fall 105 feet. Immediately below the falls the river is again navigable for a 
short distance, and then assumes the character of rapids as far as Lewiston. 
7 miles from lake Ontario, where it again becomes navigable and remains so 
luitil it enters the lake. 

'^. The volume of water flowing varies with the level of Lake Erie, which level 
is sub.ieet to variations of several feet, dejiending u.pon the rainfall, barometric 
pressure, and direction and force of the wind. At the mean level of the lake 
(elevation 572.88) the volume of discharge is 222.400 cubic feet per second. At 
a very low stage (elevation 571) the volume is ISO.SUO. (See Annual KL-pnrt. 
Chief of Engineers. V. S. Army, for 1000. p. r»3(il.) For short periods in mid- 
winter, or with prolonged adverse winds, it has sometimes be'ii even les.s. 

4. It is the great volume of water in the falls themselves and in the raiiids 
which makes tlie jilace unique. The tremendous disi)lay of power in wild lurbn- 
lence fascinates the mind, and gives to the question of Niagara's preservation a 
national interest. 

"). The local authorities on both sides of the river have rei-ognizcil their 
responsibilities in this matter, but have taken somewhat different ^iews .is vo 
what these responsibilities are. As long ago as 18S3 the State of New York pro- 
vided for the acquisition of the lauds in that State ad.loining the Falls, with a 
view to creating a jiublic iiark, and in 18S5 it de-laved that these lauds •'shall 
forever be reserved by the State for the purpose of rest(n-ing the seeueiy of the 
Falls of Niagara to and preserving it in its natural (-ondilion; they shall forever 
be kei)t open and free of access to all mankind without fee. charge, or expense to 
any person for entering upon or passing to or o\er any part thereof." A coui- 
lyission of five was <-reated to carry out the purposes of the act. The State 
reservation now includes 412 acres, part of which is under water, and an annual 
appropriation of some ^2r).()00 is made for its care and maintena.nce. The com- 
mission has no jurisdiction beyond the limits of the reservation, but it has never 
throughout its existence failed to protest and bring all its intiue-.ice to liear 
;!gain.<t the depletion of tlie falls by the abstraction of water above and beyond 
the limits of the reservation. Nevertheless, the State legislature has granted 
numerous fraiu-hiscs for the diversion of water, as will appear fnrt]M>r on. 

0. Soon- after the creation of the New York State reservation a publit- park 
>vas I re ited on the Canadian side, called the Queen Mcforia Niagara Falls Park, 
and was placed under the control of five connnissioners. This park now ex- 
tends pr: (tically the whole length of the Niagara Kivcr from Lake i:rie to Lake 
Ontario, antl embraces an area of about 734 acres. P.y an act of the Onta.rio 
Legislature ((;2 Victoria, chap. 11), it was enacted that "The said connnis- 
sioners. with the api)roval of the lieuten.ant governor in council, may enter into 
iiu agreement or agreements with any persi^n or person-^, eojupany or c.imiianies, 
to take water from the Niagara Kiver or from the Niagara or Weil.iud Itivers 
at certain points wittiin or without the said park for the jturpose of enabling 
such person or persons, comiiany or conn>anies to generate within or without the 
park electricity, or pneumatic, hydraulic or other power, conducting or discharg- 



PRESERVATION OF NIAGARA FALLS. 207 

iiijr said water tliroii.i^h and a<-ross the said park or otherwise in such maimer, 
for such rentals, and uiion sucli terms and conditions as may he eniho<lied in the 
agreement or .•isjreements and as may appear to the lieutenant governor in 
council to l)e in the puhlic interest." In 1!)03 this act was amended hy adding 
thereto the words "hut no such agreement shall he operativi; unless an'd until 
ratified and confirmed hy the legislative assembly." (3 Edward VII, cup. 7.) 
luasunich as the park receives no aid from the h'gislature in the way of annual 
appropriations for its support, the commissiimers have felt .justified in using 
with some freedom the iiower th.us granted in order to obtain a revenue foi* the 
general improvement and maintenance of the park. I'rior to the amendment of 
1903 tliey entered into four important agreements for the diversion of water, 
und caused an investigation to be made as to the availability of additional sites 
for jiower works. Two of these agreen)ents were with a single corporation, 
which has thus far utilized only one. 

7. The great water power available at Niagara Falls naturally attracted tlie 
attention of engineers at an early day. but it was not until it could be trans- 
mitted and us-ed. in the form of electricity thai; its develoimieut on a large scale 
became fin;incially practicable. There are now five principal corporations en- 
gaged in furnishing or i>r«'paring to furinsh electricity for ciunmerclal p>v,ri)Oses 
obtained from the water iiower. two of them locate<l on the American and thi'ee 
on the Canadian side. A brief description of each is here given. A map show- 
ing their locvUion is submittal herewith. It is to be remarked that none of the 
diversions have been sanctionwl by the United States Covernment. 

S. /. \iii!/fira Falls; Hjiilraulic Poiccr c€ Munufucturiny Co. — This company 
was organized in 1877 under the general laws of the State of New York. It 
purchase<^l a canal which had been constructed before the Civil War lejtding 
from I'oiT Day. above the falls, through the city of Niagara Falls, to the edge 
of the cliff below the falls, where a grist mill had been established. (See map.) 
The length of this canal was about 4.400 feet, its width 36 feet, and its depth 8 
feet. A width of 70 feet and depth of 10 feet had been projected. In issl the 
company established its first station /or supplying electricity for lighting, this 
being the first public distribution for comnierci;il purposes of electricity derived 
from Niagara Falls. The increasing demand for electricity and the improved 
methods of transmitting it led to a steady development of the works of this 
comi'any and to the establishment of others. In IS!),") an important enlargement 
of the canal having been begun, the right of the company to take water from 
the river was questioned b.v the connnissioners of the State reservation at 
Niagara. An opinion was obtained from the attorney general of the State of 
New York (copy appended marked "A") in which it was held that the Niagara 
Iliver is a navigable river in law, that the comi>any had no right to increase the 
capacity of its canal, that it had no right to divert any water from the river, 
and that a diversion of water sufficient to diminish the flow over the falls was a 
nuisance and -could be restrained. 

The New York Legislature thereui)on passed an act (chap. ^68. Laws of 189fi). 
in which the right of the company " to take, draw, use, and lease and sell to 
others to use the waters of Niagara River for domestic, municipal, and sanitary 
purposes, and to develop power therefrom for its own use and to lease and sell 
to others to use for manufacturing, heating, lighting, and other business pur- 
poses, is hereby recognized, declared, and confirmed." No limit as to the time 
during which these rights were to exist was fixe<l. but the amount of water to be 
taken was limited to that which could be drawn by a canal 100 feet wide, with 
such dei)th and slope as would maintain at all times a dejith of 14 feet. The 
amount of water thus described is not specific. It is computed to be about 
0.500 cubic feet per second for the works now under construction, but it would 
be jiossible to construct works under different plans which would use a much 
greater quantity of wa.ter. The comiiany is now using about 4,000 cubic feet 
per second. It is extending its works, and expects to develo]> about 134.000 
liorse])ower, in addition to which its tenant companies will develop a.bont 8,000 
horsejiower. It has paid nothing to the State for its privileges. A List of the 
more important industries which this company supplies, with electricity is given 
iu Ai)])endix B. Its managers estimate that the power plant and the industries 
dependent ujion it for power represent an investment of !«;i 0.000.000. 

0. If. SUtfiani Falls Poircr Co. — In 1880 the New York Legislature granted a 
charter to a company called the "Niagara River Hydraulic Tunnel I'ower & 
Sewer Co. of Niagara Falls." subsequently amended in 1880. 1880, 1801. 1S<I2, and 
1803. (See chai). s:',. I.s80; chap. 480, issG : chap. 100, 1880; chap. 2ri3, 1891; 



208 PRESERVATIOX OF NIAGARA FALT.S. 

Chap. 513, J892; chap. 477, 1893.) In 1889 the name of the conipanj- was 
changed to "The Niajjara Falls Power Co." It is authorized to take water 
sutficient to generate 200,000 horejiower. computed to be about 17,200 cubic feet 
per second. Its franchise is for 50 years from :March 31, 1SS6. The location 
of its works is shown upon the map. Beginning about a mile above the falls a 
short intake canal is constructed nearly at right angles with the river shore. 
Upon each side of the canal deep pits are excavated in the rock, at the bottom 
of which are placed the turbines, and over which are placed the power houses. 
The water, after passing through the turbines, is carried off by a tunnel about 
21 feet in diameter under the city of Niagara Falls to the lower river, a dis- 
tance of about 7.000 feet. The company has in operation two power houses 
having a combined ca])acity of about 105,000 horsepower. 

It is working the plant nearly to its full present capacity, using about S.OOO 
cubic feet per second, in addition to which one of its tenant companies is using 
about GOO cubic feet. It paid nothing to the State for its privileges, biit is 
bound to furnish fi-ee of charge electricity for light and for power and also 
water for the use of the State in the State reservation at Niagara and the 
buildings thereon, when requested to do so by the commissioners of the State 
reservation. It distributes electric power over a wide area of territory and to 
a great variety of conunerclal interests in Niagara Falls. Tonawanda, Olcott, 
and Buffalo, in some cases over '■]~^ miles distant. A list of the consumers de- 
pendent upon this company is given in Appendix C. The investment is stated 
by the managers to be over $0,000,000 in the power pla3it, and $7,000000 or 
$8,000,000 in otlier industries established on its lands at Niagara Falls and 
dependent upon it. 

10. ///. CaiKKlian Xi(i(jara Power Co. — This company is an allied company 
of the Niagara Falls Power Co. just described. It was incorporated by an act 
of the legislature of the I'rovince of Ontario in 1S92, which also couhrmetl an 
agreement dated April 7. 1892, between the company and the connnissiouers 
for tl'.e Queen Victoria Niagara Falls Park. In 1899 an act was passed con- 
ferring upon those commissioners authority to modify this agreement and to 
make other agreements for the construction of power works, as specified above. 
The agreement was modified July 15, 1899, and June 19, 1901. 

11. The comptiny is authorized to construct certain works, which works will 
have a capacity of 110.000 horsepower, and by inference to take the quantity of 
water reipurtxl for that purpose, although the agreement does not in terms 
limit the capacity of the works or the quantity of water. The amount required 
to supply the works which have been aijproved and are under construction is 
computetl to be about 9.500 cubic feet per second. The location of the works is 
shown upon the map. They are of the same general tn'c as those of its allied 
company on the American side. Water is taken from the river about a quarter 
of a mile above the falls tlirough a short Ciinal and fore bay ayd dischargetl 
through penstocks into turbines near the bottom of a deep wheel pit excavated 
in the solid rock, ov(>r which is placed the i)ower house. After passing through 
the turbines, the water is carried off by a tunnel about 2,000 feet long, and 
discharged into the river below the falls. Tbe works are not completetl. and 
less than half of the generators have been installed, the <piantity of water use<l 
thus far being about 2,000 cubic feet per second. They are operated in con- 
nection with those of the allied conqtany on the American side. They represent 
an investment of several million <lollars. 

12. The companj' agrees to pay for its privileges .an annnal rental of $15,000. 
for which it may generate 10.000 electrical horsepower or less; for all above 
10,000 and under 20,000 horsepower it pays in juhlition to the above .$1 i)er 
annum for each horsepower; for all above 20,000 and luuler 30,000 it pays a 
furtlier sum of 75 cents i)er annum for each horsei)ower: and for all above 
30.000 it i)ays a still further sum of 50 cents i)er annum for each horsepower; 
that is to say, the annua! rental for generating ."UXOOO horsepower will be 
$32..50O. and for generating 110,00 horsepower will be $72,500. 

13. Tlie'*i)eriod for which the privileges are granted is 50 years from May 1, 
1899, but the company is entitled, at its option, to 3 renewals of 20 years 
each, the rentals to be adjusted at the time of each renewal, if the lieutenant 
governor in council so desires, and at the end of the third renewal the lieutemint 
governor in council may require a still f\irther renewal of 20 years; the entire 
period thus covering by the agieement being 130 years. 

14. /I". Otilario I'oircr Co. — This conqiany was incorpor.ated by an act of the 
Dominion Parliament in 1887, and was empowered to take water from the 
Wellanrl KMvev. or <'!iipi!ewa Ci-erk. near its nionib at Cliiiiitewa : this is. in- 



PHESERVATION OF KIAGAKA FALLS. 209 

(liret-tly from the Xi;igar;i River. On the 11th of April, 1900, it entered into au 
agreement with the park conimissiouers to construct works for that purpose, 
but before progressing far in the work of construction it changed its plans, and 
on the 2Ntli of June. 1002. it made anotlier agreement with the commissioners, 
under which it is now working. It claims that the first agi-eement is still valid 
and may be utilized hereafter if the company so desires. Under the agreement 
of June 2S. 1002. the compa.ny is authorized to construct works according to 
certain plans subinitted, which works will have a cai'acity of 180,000 horse- 
power, and by inference to take the quantity of water required for that purpose, 
althougli the agreement does not In terms limit the capacity of the works or the 
quantity of v.-ater. The amount required to supply tlie works, which have been 
approved and are under construction, is computed to l)e aljout 12,000 cubic feet 
per second. The location of the works is shown upon the map. Water is 
taken from the river at Dufi'erin Island, about half a mile above tlie intake 
of tlie Canadian >,iag;ira Power Co. or three-tpiartei'S of a mile libove the 
Falls, and after passing through au elaborate system of screens enters a gate- 
liouse. and tlu-iu-e is transmitted through three underground conduits, each 
IS feet in diameter, to a power house located near the foot of the cliff below 
the Falls. The length of the pijie line to the nearest penstock is 0,1 SO feet, and 
ii' tl'.e mo^^t distruit penstock a.l)ont l.OOO feet more. The works, which re))resent 
an hivestuient of several .million dollars, are not completed, only about 2.000 
cubic feet per second now being used. 

15. The compauj- agrees to pay for its privilege an annual rental of $30,000, 
for which it ni^iy generate 20.000 electrical horsepower or less. For all above 
20,000 and under :J0.0()O hoi-sepower it pays, in addition to the above, $1 per 
annum for each horsei)ower ; for all above 30,000 and under 40,000 it pays a 
further sum of 75 cents per amuim for each horsepower, and for all above 
40,000 it pays a still further sum of 50 cents per annum for eacii liorsepower; 
that is to say, the annual rental for generating 40,000 horsepower will be 
$47,500. and for generating ls0,000 horsei)ower will be $117,500. 

16. The period for which the privilege is granted is 50 yeai-s from April 1, 
1900, but the company is entitled, at its option, to three renewals of 20 years 
each, and after the third renewal the lieutenant governor in council may require 
a fourth renewal of 20 years, the rentals to be adjusted at each renewal, the 
entire period thus covered by the agreement being 130 years. 

17. V. Electrical Devcloiwicnt Co. — On the 29th of January. 1903, the com- 
missioners for the Queen Victoria Niagara Falls Park entered into an agree- 
ment with three citizens of Canada, subsequently transferred to "The Elec- 
trical Development Co. of Ontario (Ltd.)," incorporated by act of the Legis- 
lature of Ontario. (5 Edward A'll, chap. 12.) Under this agreement authority 
was given to take from the Niagara Kiver water sufficient to develop 125.000 
electrical horsepower. The amount is computed to be 11,200 cubic feet per 
second. The location of the works is shown upon the map. Water is taken 
from the river about midway between tlie intakes of the Canadian Niagara 
Power Co. and of the Ontario Power Co., or about half a mile above the Falls. 
A gathering driin. about 750 feet long, extends out into the river obliquely up- 
stream, designed to divert the required amount of water into the jiower house, 
which is located upon the original shore line. I'lider tlie p(>wer house is a 
wheel pit, e.xcavatetl in the solid rock to a dejsth of 158 feet, at the bottom of 
which are placeil the turbines. After passing through the turbines the water is 
conveyed by a tunnel to the base of the Falls and discharged about midway 
between the Canadian and American shores. The works a.re not completed, and 
)io water is now being used. They represent an investment of several million 
dollars. 

IS. The company agrees to pay for its privileges an amiual rental of $15,000. 
for which sum it may generate 10,000 electrical horsepower or less; for all 
above 10.000 and less than 20,000 liorsepower it pays, in addition to the above, 
$1 per annum for each horsepower: for all above 20.0tK) and less than 30,000 
it pays a further sum of 75 cents per annum for each horsepower; and for all 
above 30,000 it pays a still further sum of 50 cents per annum for each horse- 
jiower: xhM is to say. the annral r.Mital for generating 30,00(1 horsepower will 
be $32,500, and for generating 125,000 horsepower will be $80,000. 

19. The i^erlod for which the |)rivilege is granted'is .50 years from February 1, 
1903, but tlie same provisions are made for renewals as in the cases of the 
other companies, and the entire period covered by the agreement is thus 130 
years. 



210 PRESEEVATIOX OF NIAGARA FALLS. 

20. In the case of each of the Canadian companies the anthorities reserve the 
right to require that one-half the power genenited shall be supplied to places in 
Canada. 

21. Water is diverted also by the Park Electric Railway, under authority of 
the conijnissi(mers. the quantity to be used under plans now in execution, being 
estiniatofl at 1,5(»0 cubic feet per second, developing about S.OOO horsepower, 
while the actual present use is about GOO cubic feet per sec-ond. 

22. In addition to the foregoing, six charters were granted by the New York 
Legislature between the years ISSG and 1S!)4 to corporations organized to take 
water from the Niagai'a River, but it is believed that all. with the possible 
exception of two. have expired by limitation. In one case, the Niagara. Lock- 
port & Ontario Power Co., an act to renew passed the legislature in 1904, but 
was Aetoed by Gov. Odell in his message of May 14 of that year. The company, 
however, claims the rights granted under its original charter, and is construct- 
ing works for the distribution of electrical energy develojied by other companies, 
but is not itself diverting water. Another corporation, the Niagara County Irri- 
gation & AVater Supply Co., has done some work, and claims that its charter has 
thus been preserved, but it has diverted no water. A list of these charters is 
given in Appendix D. 

2.'?. The Dominion of Canada has granted charters to two corporations in addi- 
tion to those alraedy mentioned organized to take water from the Niagara River 
for power purposes. It has charteretl two other corjiorations. organized to take 
for ix)wer purposes water from Lake Erie which would naturally be tributary to 
the Niagara Ri\er. These- coni.panies have not finally developed their plans, 
and it is believed that their franchises are therefore not perfected, although all 
but one are still in force. In one case the charter has expireil by limitation. 
The charters fix no limit to the amount of water which may be used. A charter 
was granted in 1SS9 by the Province of Ontario to the Hamilton (^ataract. 
Power. Light & Traction Co. This company is using water from the Lake Erie 
level of the Wetland Canal, which water would otherwise be tributary to the 
Niagara River. The volume now being used is estimate<l at about l.S;(X> cubic 
feet per second, and is to be increased. A list of these charters will be found in 
Appendix E. 

24. The Chicago Drainage Canal, constructed under the authority of the State 
of Illinois, was designed to divert about 10.(XX> cubic feet per second of water 
which would naturally tlow over Niagara Falls. It has not been fully com- 
pleted, but it now has a capacity of about ."i.OOO cubic feet per second. The 
amount which it is actually diverting has thus far been limited by the Secretary 
of War to about 4,200 cubic feet per second. In addition to the foregoing, about 
.'i;}3 cul»ic feet per second of Lake Erie water is now taken for power ian"]:oses 
from tlie Erie Canal at T^ockport. 

2;"). Full and jirecise information concerning the plans and the legal rights of 
the companies which have not l)egun or completed their works has not been 
obtainalile. In the cases of the corpor;itions now furnishing or preparing to 
furnish electricity for commercial purposes, the franchises are vague as to the 
volume of water to be used, whicli is the feature of greatest intert'st here. Wo 
have computed the volumes from the available data, and have ende:ivored to 
nuike the figures conservative. It must be understood that tbe.'^e figiires are fair 
approximations. In proceetling to an examination of the etfert upon Niagara 
Falls of the works proposed, the subject is much simplified by considering only 
those companies which derive their water from the Niagara River itself, and 
that is the course here pursued. Any effects caused by these works will be exag- 
gerated by the other works mentioned. 

2G. The total quantity of water to be taken from the river by works now 

authorized is: 

Cnbic foot. 

Niagara F;ills Hydraulic Power & Manufacturing Co 0. "lOi) 

Niagara Falls plnver Co 17.200 

CAnadian Niagara Power Co I), ijOO 

Ontario Power Co.. not including Welland River Development 12. 00<' 

Electrical I).'vel(»iiment Co . '— - 11.200 

Niagara Fails Park Railway Co ._^_ 1. .WO 

Total 00,900 

Of this amount 20.700 cubic feet is to be taken on (he American side and the 
remainder, .■)4.200 cubic feet, on the Canadian side. That is. 27 per cent of the 
average discharge and 3.3 per cent of the low water discharge of the Niagai;i 



PKESEEVATION OF NIAGARA FALLS. 211 

KLver will reaso in pMss over tlu' Falls whe these works are completed and in 
full operation. The quiintity to be diverted is more than double tlie qnaiitity 
which now passes o\er the American Fall, which at the averajie stajxe is al)out 
27,S00 cubic feet. That this will in general have an injurious efi'ect u))on the 
Falls seems self-evident. The volume of water to be diverted is about the 
equivalent of the entire dischar^'e of Lake Superi()r over the S.-iult Ste. Marie. 
The aniou)it thus far actually di>erted is but IT.SOO cubic feet per secou.d, and 
has had an appreciable effect upon the Falls. To foretell with accuracy the 
effects in detail of tlie full diversion authorized would require a more coivq)lete 
knowledge of the bed of the river than is tiow obtainable. The water taken on 
the Canadian side below the crest of the rapids will affect the Horseshoe Fall 
alone. If all that taken on the American side should affect the Amei-ican Fall 
alone, it would practically leave it dry; but it seems probable that only a part 
of this diversion will be at the expense of the American Fall. 

Exactly what portion that will be can not l)e stated with jirecision, but from 
a study of the channels and reefs, so far as they are known, a reasonable esti- 
mate IS that the water would come from the two arms in about the proportion 
of one-sixth from the American Fall and five-sixths from the Horseshoe P'all. 
Exact l.v what form the changes in the two cataracts will take, whether they will 
be made narrower, or be bi'oken up into a grerster number of streams, or simply 
be reduced in volume, retaining in general their present form, can not now be 
foretold, for the reason that there is no a.ccurate knowledge of the form of and 
depth of water on the crests. If 69,000 cubic feet per second be diverted, the 
loss will be inqiortant, but if the diversion be limited to this amou.nt. or retluced, 
as hereafter indica.ted, it may not prov6 disastrous. This can not be definitely 
determined until the works now under construction have been completed and 
put in oiieration. When that happens, if it be found that the Falls have not 
suffered serious damage, as :i scenic spectacle, it does not follow that additional 
water may be diverted with impunity. Additional diversion would be an experi- 
ment even more dangerous than that now being tried, and in our opinion should 
not be i)ermitte<l. 

27. In return for the impairment of the Falls thus far authori/.e<^l. the State of 
New York will receive ])ractically nothing for the .j42,000 horsepower authorized 
on that side, and the Queen Victoria Niagara Falls Fark will receive an annual 
rental of $270,00<», or an average of 65 cents per horsepower for the -ll.j,0<X) 
horseiHtwer authorized on the Canadian side. These figures do not incbide the 
■S.OUO horsepower being develoi)eil by the electrical railway nor the power devel- 
oped by the Hamilton Co. with water from the Welland Canal. 

2.*^. If all the water and all the head from the top of the upper rapids to the 
foot of the Falls could be utilized, there would result over 4.000.000 mechanical 
horsejiower. Probably space could be found, if desired, for works which would 
utilize about half of this, or. say. 2,000.000 horsepower, or possibly more. As 
the.v could not utilize all the head, they would use much more than half the 
water. It will require time to create a market for all this power, but it is rea- 
sonabi.v certain that it will in due season be found if the de\eloiiment of the 
power itself is to go on michecked. The dilference in cost in favor of falling 
water over any other method of developing power is so great that all other 
methotis are sure to be abandoned where sufficient water power is available. 
The difference at Niagara Falls is ))robabIy not less than Sfir; or .$20 per annurii 
lier horsepower. The cost of transmission to distant points increases with the 
distance. Jind finally becomes so great as to be unprofitable: but electrical engi- 
neers are engaged in improving the methods and reducing the cost. An average 
difference of cost for each horsepower can not now be given with any close 
degree of ai)iiroxinration. but the difference, whatever it is. is a peri>etnal annu-il 
siiving. which, if capitalizetl, will show that the connuercial A-alue of the power 
at Niagara Falls is very gi'eat and is to be measured by the hundred millions of 
dollars. 

2Jt. Whether this commercial asset .shall be utilized to such an extent as to 
seriously impair the ma.iesty and scenic beaut.v of the Falls depends uiion the 
public will. In our opiuioi, the commercial advantages of a large increase in 
develoiunent of jiower will not compensate for the great loss to tlie world of 
the insjiiiation. aesthetic education, and oi)portunity for recreation and elevat- 
ing jileasure which the mighty cataract att'ords. The direct advantages to the 
public from revenue is nothing on the New York side of the river and com- 
jtaratively slight nx the (^anadian side. There is. of course, an indirect ad- 
vantage line to added taxable wealth and reduction in the cost of ])ower. but 
these advantages ai-e. in our opiiuon. slight in comparison with those which,' 



212 PKl::SERVATr0X OF ^"lAUAKA FALLS. 

spriuji ii'iiii i);t" jjresfrvation of the beauty and majesty of tlie Fulls in their 
natural condition. (>-. er SOO.OtK) people visit the Falls annually, deriving pleas- 
ure and inspiration from them. TJie nations of the world have always recog- 
nized the great value of parks and reservations, and throughout the civilized 
world they have preservetl places of natural grandeur and beauty and fur- 
nished parks, artilicially beautified, for rest,- education, .and the elevation of 
their peoi)le. An iUustiation may be given in the case of the city of New York, 
one of many hundreds. There the municipality has acquired, in Central Park, 
property which is estimated to be worth $225,000,000. and has spent millions 
upon its improvement and ornamentation. The United States Government has 
leservtHl lands of striking picturesqueness. grandeur, and interest, regardless 
<»f their value. These illustrations would seem to prove conclusively that the 
l>eople are not inclined to offset mere commercial values against the intangible 
but none the less great advantages found in the preservation of the great 
-works of nature. 

30. It is probably not expedient to attempt the recovery of the rights granted 
to companies which have taken full advantage of them. In the case of the 
Niagni-a Falls Po\\-er Co.. on the American side, the franchise authorizes it to 
develop 200,000 hoi'sepower. It has constructed works having about half that 
capacity, but has not begun the construction of tlie additional works, and we 
believe, has no present intention of doing so. In the case of the Ontario Power 
Co., on the Canadian side, the construction of works under the agreement of 
April 11. 1900, has been indefinitely postiioned. The authority for the ad- 
ditional works in both these cases could probably be withdrawn without inflict- 
ing an unreasonable hardship. All franchises of which advantage has not 
been taken should be extinguished. 

3L The following is a sunmiary of the foregoing statement of facts : 

(0) The glory of Niagara Falls lies in the vohmie of its water rather than 
in its height, or in the surrounding scenery. 

(h) Works are now authorized jsnd partially completed at the Falls which 
will divert fi-oni tlie Niagara River ab.ove the Falls about 27 i)er cent of the 
average discharge, and about 3.3 per cent of the low-water discharge, which is 
more than double the quantity now flowing over the American Fall. In ad- 
dition to this, water naturally tributary to the Niagara River is being diverted 
through the Chicago drainage canal, and for power in addition to navigation 
purposes through the Erie and the Welland Canals. 

(c) The effect of this withdrawal of water is to in.iure both the American 
and the Horseshoe Falls in nearly equal proportions. While the in.iury will 
be perceptible, it may not be destructive or disastrous. 

{d) Improvements in the ti-ansmission of electric power and increased de- 
jiiaiul will u'ake a market for all the power which can be developed at Niagara 
Falls, and will cause a destruction of the Falls as a scenic spectacle if the 
dcelopnient l>e allowed to go on uncheckeil. 

(c) Charters liave been granted to corporations which propose to divert ad- 
ditional amounts in quantities not now limited. 

(/) The sums of money invested, or being invested in the works now in op- 
eration or under construction, and in the industries dependent upon them, 
amount to many millions of dollars. It is probably not expedient to attempt 
the withdrawal of the rights thus utilized 

((/) The '■(uunxM'cia] v;tlue of the wnter power at^ Niagara Falls is very gretit. 
but if compared with values set aside by wealth.v comnnuiities el.«ewhere for 
park inirposes this value is not too great to be devoted to similar purjwses. 
The place is visited annually by about 800,000 people. 

32. If the Falls are to be preserved it must be by mutual agrenient between 
the two countries. As a step in th.it direetion we recommend th:it legisla- 
tion be enacted which shall contain the following provisions, viz : 

(o) The Secretary of War to be authorized to grant permits for the diver- 
sion of 28 500 cubic feet per second, and no more, from the waters naturally 
tributary to Niagara Falls, distributetl as follows: 

rul>io foot. 

Niagara Falls Hydraulic Power & Manufactin-ing Co 0. 500 

Niagara Falls Power Co 8.600 

Krie Canal or its tenants (in addition to lock service) 400 

Chicago Drainage Canal 10,000 

(b) All other diversion of water which is naturally tributary to Niagai'a 
Falls to be prohibited, except such as may be required for domestic use or for 
the service of locks in navigation canals. 



I'liEj^Eia'ATiO^' or IS'IAGAEA TALLS. 213 

u) Suitiiblc pen.-ilties for violation of the law to be prescribt'il. 

(d) The following prohibition to remain in force two years, and th(;n to be- 
come the permanent law of the land. if. in the meantime, the Canadian Goa'- 
ernmeut shall 'have enacted legislation prohibiting the diversion of water which 
is naturally tributary to Niagara Falls, in excess of 36,000 cubic feet per sec- 
ond, not including the amounts required for domestic use for the service of 
locks in navigation canals. It is assumed, however, that an understanding upon 
this sub.iect would be reached by treaty. 

The ob.lect of such legislation would be to put a stop to the further de])lotion 
of the Falls, and at the same time inflict the least possible injury ui)on the 
important interests now dependent upon this watei" i)ower. The amount to be 
diverted on the Canadian side has been fixed with a view to allowing to the 
companies on that side the amounts for which they now have works under con- 
struction, which are : 

('iibic feet. 

Canadian Niagara Power Co 9, 500 

Ontario Power Co 12,000 

Electrical Development Co 11,200 

Niagara Falls Park Railway Co .1,500 

Welland Canal or its tenants (in addition to lock seiwice) 1, SOO 

04. One of the effects of such legislation would be to give to Canjida the ad- 
vantage of diverting 7,500 cubic feet per second more than is di\erted in the 
United States. The advantage is more apparent than real, since the power 
generated on the Canadian side will to a large extent be transmitted to and used 
in the I'nited States. In the negotiation of a treaty, however, the ])oint should 
be considered. 

05. The substance of this report was submitted to our Canrulian colleagues 
before the passage of the joint resolution, with a view to uniting in a joint 
report under the general law providing for the commission. There was a sub- 
stantial agreement in the statement of facts, and such differences as developed 
with respect to the recommendations which ought to be made did not seem 
insuperable, but our colleagues desired time for further consideration. We have 
no doubt of their sympathetic interest in carrying out that part of the in- 
structions contained in the resolution which requires us " to exert in conjunc- 
tion with the members of said commission representing the Dominion of 
Canada, practicable, all possible efforts for the preservation of Niagara Falls 
iu their natural condition." 

Very respectfully. O. H. Eknst. 

C'nJoiul. Corps of Engineers. Chairman. 
Georgk Clinton, 

Member. 
Oko. Y. Wi.snkk, 
Memhrr, Ameririni Section. 
The Secretary at War, 

Washington. D. C 



efj'orts uron the existing water-power situation at niagara eali,s. so fab 

as concerns the diversion of watek on the american side report by the 

amiruan memiieks ok the international wateliw.vys commission. 

International Waterways Commission. 

Office of American Section. 
Buffalo. A". 1„ Aovemher l.'t. 1906. 
Mr. Secretary : The American members of the International Waterways 
Commission have the honor to return herewith the report dated October 5. 
]f)0(J, by Capt. Charles W. Kutz. Corps of Engineers, United States Army, upon 
the subject of permits for diverting water on the American side at Niagara 
Falls, referred to them by your indorsement of October 33. 

In our report^ dated September 2lt, lOOO we gave a brief description of the 
four kinds of permits authorized by the act approved June 29. 1000, and we 
concurred in the reconnnemlations contained in Capt. Kutz's report' of August 
15, 190(5. which referred to permits of the third kind, or those for transmitting 
electiical power from Canada into the United States to the aggregate amount 
of 160,000 horsepower. The report by Capt. Kutz now under consideration 

1 PfiuliHl in War I)(>partmiMit Document Xn. L'S-I. Office of the riii(>f of Kngineers. 



211: PRESEKVATIOX OF KIAGARA FALLS. 

refers to pcniiits of the tirst kind, or those for diverting water from the Niagaia 
River on the American side to an aggregate anionut not exceeding 15.000 cnbic 
feet i)er second. 

The conditions imscribed in the law for this kind of iienuits ilre that — 

1. They nnist be issned " to individuals, companies, or corporations which 
are now actnally producing power from the waters of said river or its tribu- 
taries in tlie State of New York or from the Erie Canal." 

2. The amount of water to be allowed must not exceed that " now actually 
in use or contracted to be used in factories the buildings for which are now in 
pi'ocess of construction.'' 

3. The amount to l)e allowed " to any one individual, company, or corpora- 
tion as aforesaid" must not exceed 8,(M>0 culrrc feet per second. 

4. The total amount to lie allowed "to ail individuals, companies, or corpora- 
tions as aforesaid" must not exceed an aggregate of 15.000 cubic feet per 
second. 

Applications have been received from the Niagara Falls Power Co. for a per- 
mit to divert s.GOO cubic feet i>er second, from the Niagara Falls Hydraulic 
I'ower & Manufacturing Co. for a permit to divert 6,4(X) cubic feet per second, 
and from numerous industries at I^ockport and at Medina, using small quan- 
tities of water from the Erie Canal. 

After a careful examination of all tlie circumstances which should affect a 
decision as to the amount of water to be allowed under the act. including the 
capital invested, the i)resent capacity of the works and their present output, 
the quantity of water now actually in use. the contracts made for furnishing 
I)Ower. with the dates of such contracts, the future capacity of the works as 
projected, and the charter rights under New York State law, Capt. Kutz reaches 
the conclusion that a permit should be granted to the Niagara Falls Power Co. 
for the maxinuim amount allowed, viz, 8,600 cubic feet per second. He finds 
that the company and its tenants have that amount actually in use iuid may 
reasonably ask for the whole of it. and in that ojjinion we concur. He is in 
ilonbt whether it should include the water which is occasionally used for sluic- 
ing debris and ice. The .-inionnt of this is not accurately known. i)Ut it is esti- 
mated at between ('A)O and TW) cubic feet per second during the sluicing process. 
It is used only intermittently. The total amount thus nsed in a year would, 
if distributed throughout the year, be but a small average per second. The law 
is explicit in prohibiting a permit for any amount whatever in excess of S.600 
cubic feet per second, but it seems a reasonable interpretation to take that as 
the general average and to allow the company to use a slightly less amount 
during the greater \n\vt of the year in order to accumulate enough water to 
supply the demands of sluicing ui)on the occasions when it is needed. 

After a similar careful examination of all the circumstances relating to the 
Niagara Falls Hydraulic Power ct Maiuifacluring Co., Capt. Kutz renclies the 
conclusion that a i»ermit should be granted th.il company for the diversion of 
5.743 cubic feet per second, exclusive of the amount required for sluicing, or 
for 0,4(18 cubic feet per second if the water for sluicing be included. The latter 
is estimated at 000 cnbic feet per second. It seems to us desirable that the 
]>ermits to ti>e two companies should resemble each other in their provisions 
for slniiiiig. If to the 5.743 cubic feet per second .iust mentioned tliere be 
added 107 cubic feet per second as an average for sluicing, an allowance will 
be made for the accunnilation of water which will provide 060 cubic feet i>er 
second for sluicing during llOs hours of each month, or .5!) days in each year, 
an allowance which is anqile. Under this arrangement the .-iniount to be 
grant(Hl to tins company for the use of itself and its ten.iuts \v(iuld be 5.S50 
cubic feet per second. 

The industries using water from the Erie Canal are numerous, and the quan- 
tity of water diverted is comparatively sniall. At Lockport 27 i)ersons or cor- 
porations are using water taken either from the upper or the lower level. It 
is underst(»od tliat most of the water from the upper level is returned to the 
canal: Init the arrangement of tunnels is such that the water has two outlets, 
and it is impossible to determine what portion is permanently diverted into 
Eighteenmile Creek. Many of these industries are hH-ated one below the other 
on lOighteenmile Creek, and use the same water successively, taking it from 
ihe lowi-r h'vel. The ipiantily of water permanently diverted from the canal 
at Lockport Is found from measin-ements taken above and bi'low all diversions 
to be upon an average 103 cnbic feet i)er second. 

Industries at Medina. N. Y.. use ai)out 105 cubic feet i)er second. Tlio num- 
Iter of Die industries is n(>t given. Imt it is underiJtood that they an- in general 
of about the same niai:nilu<tt^ as those ;u Lockiiort. 



^UESERVATTON OF NIXGAHA FALLS. 215 

The totiil isniomit of water divertPd from the Erie C uial is therefore 358 
cubic feet per seeoiul, nnd the inunher of industries nsinji it is between 30 anci 
40. ]\hui.v of these industries have made ai)i)lieati(in for permits; but many 
others have not. and of those applyinir many use the water which has previously 
been used by one or more others. Manifestly there is dilliculty in apportioning^ 
the in-oper .•uuoiuit anions so great a numl)er. After api'ortionment there 
would be ditiiculty in the enforcement Iiy the Federal authority of the provi- 
sions of the permits if granted. The canal is owned by and is under tlie exclu- 
sive control of the State of New York. The State engineer jirotests against 
the granting by the United States of any permit which shall imi»ose an obliga- 
tion upon the State. Capt. Kutz suggests that the dilhculty may be met by 
treating all these industries ;is tenants of the State and granting the permit to 
the Sate, as it is proposed to provide for the tenants of the Niagara Falls 
Power Co. and of tlu> Niagara Falls Hydraulic Power & r^Ianufacturing Co. by 
the permits of those companies. He recommends that a iiermit for the diver- 
sion of oftS cul)ic feet per second be granted to the State of New York. 

The objections to this course are that the State of New York has not applied 
for a itermit and might perhaps not be willing to accept one. and it is a some- 
what force<l interpretation of the law to include the State among the "indi- 
viduals, companies, or corporations which are now actually prodticing power," 
to whom the privilege must be restricted. It is our o])inion thai the persc^n 
first using the water after it leaves the canal should have a permit directly 
from the Secretary of War, and that persons using it afterwards uiay be 
allowed to do so without a permit. The information necessary for the issuance of 
these permits is not now at hand. We have taken steps to secure it, and if the 
honorable Secretary of War concurs in the opinion just expressed we propose 
to s- hniit a smioJementary report u])on the subject as soon as possible hereafter. 
We accordingly recommend that permits for the diversion of water from 
the Niagj.ra IMver I»e granted to the Niagara Falls Power Co. for 8,G00 cubic 
feet per second and the Niagara Falls Hydraulic Power & Manufacturing Co. 
for .5.8.50 cubic feet per second, it being understood that these are average 
amounts, and that the larger amounts occasionally required for sluicing may- 
lie accumrilatod by using generally smaller amounts. 
Y'ours, very respectfull.v, 

O. H. Ernst, 

CUiinnan. 
Gkorge Clinton, 

Hilemher. 
E. E. ?Iaskell, 

Member. 
Hon. W. H. T.\FT. 

Sccretaii/ of War. 



report by capt. charles w. kutz. corps of engineers. 

War Department, 
Office of the Chief of Engineers, 

Washington., October o, 1906. 
General: 1. Referring to the orders of the Secretary of War dated .Tul.v 14, 
1900. in reference to the power sitiL-ition at Niagara Falls, and to the report 
dated August 15. 1906. in reference to the Canadian power companies and their 
associated transmission companies, I now have the honor to submit a report 
in reference to those companies seeking permits to divert water on tlie .American 
side. 

2. The law limits the present granting of permits for diversion to those indi- 
viduals, comi-anies. or corporati(»ns which are now using water for power pur- 
])Oses from the Xi;igara River, or its tributaries, or from the Erie Canal. 

3. The only companies coming within the scope of the act of Congress are the 
Niagara Falls Power Co.. the Niagara Falls Hydraulic I'ower & Manufacturing 
Co., and numerous small industries at Locki)ort and at Medina, N. Y. 

4. Upon request, tlie two large companies prepared specific replies in writing 
to each of tlie (piestions propounded by tlie Secretary of War. and copies of 
these rei)lies are appended hereto, marked Aiipendix 1 and Appendix J. 



216 PEESERVATION OF KIAUAKA FALLS. 

The Niagara Falls Poicer Co. 

5. This company was crpated. organized, and contiuned by six acts of the 
legislature of the State of New York, as follows: Chapter S3 of laws of 1886. 
chapter 489 of the laws of 18S6. chapter 109 of the laws of 1889. chapter 253 
of the laws of 3891. chapter 513 of the laws of 1892, and chapter 477 of the 
laws of 1893. In section 2 of one of these acts (chapter 513. laws of 1892) 
it is provided " that nothing contained therein or in any of the former acts 
concerning said corporation shall be so construed as to confer an exclusive 
right nor any right to infringe upon the State reservation, or to obstruct the 
navigation of the Niagara River, or to take therefrom more water than shall be 
•sufficient to produce two hundred thousand effective horsepower." 

6. The general constrnction adopted by this company for utilizing the energy 
of the Falls is as follows: A short canal has been excavated at a point about 1 
mile above the Falls on the American side, its direction being approximately 
at right angles to the river; this canal is 250 feet wide at the mouth, narrowing 
to 100 feet at its upper end: its depth is about 12 fee. Two power houses have 
been constructed on opposite sides of this canal. The water is carried by the 
means of pt>nstocks to the turbines which are installed near the bottom of the 
two wheel pits under the two respective power houses. After leaving the tur- 
bines tiie water is discharged into a horseshoe-shaped tunnel with an area 
equivalent to tliat of a circle 21 feet iu diameter, which carries it to the lower 
river, a distance of about 7.000 feet. 

7. In power house No. 1 the turbines discharge their water into the tailrace 
openly without draft tubes. In power house No. 2 draft tubes are used, mak- 
ing the theoretical effective head 144 feet in power house No. 2 as against 136 
feet in power house No. 1. These power houses have a combined generator 
capacity of 105.000 horsepower. 

8. In addition to the above, water is supplied from the intake canal to the 
International Paper Co. and to the i)umping jilaut of the Niagara Falls Water 
Works Co. 

9. As a result of more or less recent tests made by the engineers of the 
l»ower company, it was determined that an avera.ge in the two power houses 
of 0.101 cul)ic foot of water per second was required to develoj) 1 electrical 
horsepower at the .'switchboard. If this deternn'nation is correct, the develop- 
ment of 100.000 electric-il horsepower, the nominal capacity of the ]»lant. would 
require 10.100 cul)ic feet of water per second. This amount exceeds l)y 1.500 
^•ubic feet the ansnunt computed as necessary under the a.'?sunu>d cihcieucy of 
the turl)iues and the theoretical effective heads noted above. This ditl'erence 
is due to certain defects in the design. Ihe tail water in the two wheel pits 
standing at such a level as to materially affect the effective head. 

10. The plant of the International I'aper Co., one of the power company's 
tenants, consists of 6 turbines, each rated 1,600 horsepower, and 2 centrifugal 
pumps, representing about 69 horsepower. The amount of water used by this 
company was determined by test made iu 1904. using a current meter placed 
at various jioints in a given cross section of the paper niiil's headraci>. fhese 
measurements were taken with an average of 87 per cent of gate ojiening. and 
showed a tUiw of about 660 cubic; feet per second, or about 7.50 cubic feet per 
second with full gate opening. 

11. The hydraulic jtlant of the Niagara F*al!s Water Works Co. cunsisis of 
two Peltou water wh-^els. each r.ited at 4<tO effective horsepower, and the 
amount of water used does not excet'd 75 cubic feet per second. The officers 
of the Niagara Falls Power Co. are of the oi)inion that the use of water by 
the Water Works Co. for developing power to run their inmqts is exempted 
from the prohibition of diversion on the ground that it is indirectly used for 
domestic and sanitary purjjoses. 

12. Deducting Ihe amounts used by its tenant compaiiies, s-2T) cubic feet per 
second, from the maxinnun amount for which a ])erniit can now be granted to 
any one individual, comisany. or corporation — that is. s.600 cubic feet per 
second — there remains 7.775 cubic feet a second for use in the i)ower plant. 
Again, deducting the amount used in the exciter turbines, stated to be 35 cubic 
feet i)er second, and using the ratio obtained from the company's tests above 
mentioned, the maximum electrical output of this company is linuted by law 
for the present to 76.63(t. electrical horsepower. 

13. This limitation does not take into consideration tlu> water that is occa- 
sion.-illy usinl for sluicing debris and ice. the amomit of which is not known. 
It is questionable whether water used for this iturpose should be included in 
that for which a permit is considered necessary. Such u.se is intermittent, and 



PRESERVATION OF NIAGARA FALLS. 217 

it is practic:ill3- impossible to deterniiue tlie aiuoiiiit used at any giwii time. 
The Niagara Falls Hydraulic Power & Mauufacturing Co. estimates tliat 6C0 
cubic feet per second is at times required for tliis purpose. If it be delermined 
that water used for sluicing ice nn.st l)e iiiclnded in the amount covered by the 
permit, the mid-winter electrical output of this company will be still furtlier 
curtailed. 

14. The maximum output of this company during the weelc preceding that 
in which the examiutition was made was 64,800 horsepower, while the average 
of the maximum weeklj' loads since October, li)05, was 73,000 horsepower. 

15. The company in its statement includes a list of contracts for furnishing 
power in which the optional amounts aggregate 367,000 horsepower. Of this 
amount 102..5.50 horsepower has been called and is now in use. These contracts 
cover the output of both this plant ;\nd th.-it of the Canadian Niagara Power 
Co. The amount called for represents the sum of the maximum amounts of 
power used by their tenants. These peak loads never occur simultaneously. 
and tiie actual peak electrical load generated up to date by the American 
and Canadian plants combined has been about S5.000 horsepower. 

16. The books of this company show iui iii'.estment in i)ower ])lant of 
$13,500,000. Tills amount is largely in excess of what it would cost to repro- 
duce it, as it is evident from the investments now being made on the Canadian 
side. It is also evident from the estimate of $7,000,000 given as the amount 
required to increase the capacity of the plant to the statutory limit — that is, 
200,000 effective horsepower. This l.;rge investment, $135 per horsepower 
developed, is partly accounted for by the fact that this company was the- 
pioneer in this method of utilizing the power of Niagara Falls, but it can not 
fairly be said to be due to investments made with the object of doubling the 
capacity of the plant. The intake is probablj- larger than necessary for the 
development of 100.000 horsepower, but the rest of the plant was designed for 
that amount. Notwithstanding this large investment, the books of the company 
show that its net earnings, after paying interest on its bonded debt and all 
oher fixe<^l charges, now amount to 9 per cent on its outstanding capital stock 
of over $4,000,000. 

17. This company is entitled by reason of its contracts to the fullest con- 
sideration that is now possible under the law — i. e., a permit for the diversion 
of 8,600 cubic feet per second. .Such a permit will practically limit the com- 
pany to its present output and will not allow any growth, but if this company 
is allowed to receive from the Canadian Niagara Power Co. the amount 
recommended, 60,000 electrical horsepower, the normal development of the two 
companies considered as one will not be seriously interferetl with. 

The ISiiagara Fulls Hydraulic Poivrr cG Munufucturing Co. 

IS. This company was chartered under the laws of the .State of New York 
in 1878, and subsequently, by an act of the Legislature of the iState of New 
York, known as chapter 968, laws of 1896, its rights were conlirmed. In this 
confirmatory act the company was limited and restricted to the use of "such 
quantity of water as may be drawn by means of the hydraulic canal of said 
company when enlarged tLrougli its entire length to a v/idth of 100 feet and 
to a depth and slope sufficient to carry at all times a maximmn uniform depth 
of 34 feet of water.'" This limitation is more or less indefinite, but the capacity 
of such a cbannel hns l)een computed to be 9..500 cubic feet per second without 
material diminution of the head. 

19. The canal leaves the Niagara Kiver about 1 miie above the Falls and 
extends through the city to ;i p.olnt about one-haif mile below the Falls, where 
the jjower houses of tiie comi)any are situated. 

2<i. It is being widentHl and deepene<l to the maximum authorized dimensions, 
riie widening down to the water surface lias been completed, e.xcept at two 
points where work is now in progress. A great <Ual of work has also been done 
toward giving it a uniform depth of 14 feet throughout the width of 100 feet, 
but this work has not been conqileted. 

21. The company disposes of its power in three ways. First, it sells water to 
six corjiorations, wlio develop i)ower with their own machines. This water is 
used under heads varying from 50 to 325 feet, with an average head, consider- 
ing the quantities used at each elevation, of about 90 feet, or h^ss than one-lialf 
of the maximum effective head. The amount of writer so furnishe<l is compute<l 
to be 3.332 culiif ffct iK>r second. In jiower house No. 2 (No. 3 being obsolete). 



21(S PRESERVATION OF NIAGARA FALLS. 

situjitt'd on tlie river It.uik at the f(M)t of the bliift', the company develops 32.000 
mechanical li(ii>eiio\ver, nsing for tlu' pnrposc 2,011 cnl)ic feet of water per 
second inuler an ettective head of 200 feet. Of this amonnt 2T,30.S meclianical 
borsep'iwer are sold to customers, who convert it into electrical jKnver by the 
use of generators attached to the power coyipany's turbines. The remaiidnii 
power de\eloped in power hou.'^e No. 2 is converted into and sold as electrical 
power. For several years past Ihe company has been engaged in the further 
development of its water power, and now has under construction a fore bay 
capable of furnishing .sutficient water, when tlie canal has been widened and 
deepened to the extent authorize<l by law. to develoj) practically 1(»0.(M»0 .addi- 
tional horsepower. As stale<l above, nuich of the neees.sary enlargement work on 
the canal has been completed, the greater i)art of the excavation t^)r the |H)wer 
house itself has l)eeu comitleted. the fore bay is under construction. ;uiii Intakes 
leading to the penstocks, with their corre.sponding gates and valves, are being 
iustalleil for the complete development. 

Of the amount to be developed in power house No. 3, 3G.0<X) horsepower i.s 
for u.se of the Pittsburgh Reduction Co.. a contract for its sale having been 
entered into on the 20th day of November. lf)05. For develoi»ing this amount 
there will be recpured about 2.400 cubic feet of water per second. As the con- 
ditions laid down by the act of Congress have been complitxl with so far as 
this a<lditional development is concerned, it is recommended that the necessary 
])erniit be issued. In the statement furnished by the comjiany as to the water 
now in use there is inchideil GUO cubic feet i)er second for sluicing debris and 
ice. It is questi(»nable whether this amount should l)e include! in that for 
which a r»ernnt is considered to be necessjiry. Such use is internnttent. and it is 
practically impossible to determine the amount used at any given time. If the 
diversion of water for this purpose does not require a permit, this company is 
entitled under the law to a permit for 5,743 cubic feet Y>er secon<l, being the 
amount now actually in use and coninicted to be used in fi'.ctories in process 
of constru'titm. If the water used for sluicing ice and debris must be in.-luded 
the permit should be for (i.4<)3 cubic feet i>er second. 

22. The settlement of this question will not affect the Niagara Falls Hydraulic 
Power & Manufacturing Co.. but will affect the output of the Niagara Falls 
Power Co. 

23. The investment rep-resented by the plant of the Niagara Falls Hydraulic 
Power & ^fanufacturing Co. is .$5.00(X000. This includes $1.400.(«K» expended or 
obligated for work on the canal and in connection with power Innise No. 3. It 
is estimate<l that $1 riOO.00(» additional will be re<iuiretl for completing the canal 
and power house No. 3. 

24. AVhile the granting of a permit to this comjiany for the diversion of 0,4<X) 
cubic feet per second will enable it to meet its contract obligations, it will not 
j)ermit it to take the fu.U advantage of the investuieiit already m:ule nor allow 
for any growth. The investment tli.'t will be rendered useless is roughly esti- 
mated "at !i;2!)<MI(lO for the caiial an<l .$300.(Mi() for power liouse No. 3. 

Iniliisii iis uxiiifj iratcr far water puriHjfirs derircd from Erie Canii} (it or neitr 
Jjockitort, X. y., (iiid at Medina. \. Y. 

25. In 1826 the State of New York leased to Richard Kennetly and Junius II. 
Hatch so much of the waters of the I\rie Canal as could be spared fi-om the 
canal at the head of the locks at Lockport at an annual rental of .$2<K). The 
le^ise referred to was periietual and in is,")() it. or the jirincipal part of the rights 
under it. came into the hands of the Lockjjort Hydraulic Co.. which has since 
then oi>erated the lease. The lease in-ovides that the water so used shall be 
discliargetl into the lower level at such i)lace and in such mauTier as the State 
canal connnissiimers shall from time to time deem most advisable for tiie 
security of the canal and for the convenience of the Jiaviga.tion thereon. 

26. In an investigation of this m;itler made in .Tuly by tlie secretary of the 
American section of the International Waterw.-iys Conindssion it was developed 
that the arrang(Mneut of tunnels in Market Street near Exchange Street was 
such that the water <lrawn from the hydraulic race could tind its o'.Ulet either 
into the canal or through the culvert to the mill pond an«l eventually ilowji 
Eigiitet>nnnle Creek, thus making it impossible to determine what portion of the 
water supjilied to these mills is permanently div<'rted from the c.-uial. though it 
is understood that as a rule it is all returned to the canal. In the application 
tile<l with the Secretary of War by tlie Locki'iu'l Hydraulic Co. the amount of 



PKESERVATION OF NIAGARA FALLS. 211) 

water used by its teu.-uits ;iiul deli- ered to the lower level is stated to be 
iipproxiuiately HlKt tubie feet i»t>r second, wberens Mr. Henry A. Van Alstyne. 
New York State eniiineer and surveyor, is authority for the statement that 350 
fubic feet per second is the anioiuit tnkeii fi-oin the tipper level and returned to 
the lower level of the canal. In a subsequent letter from the attorney for the 
l.,ockiK)rt Hydraulic Co. it is learned that the amount nameil in the api)licatioii 
represents the maximum quantities covered by the couqiany's leases, and further 
that it iuchKles the amount of water required to operate the machinery of the 
Holly Mauufacturiufx Co.'s i)lant not now in actual operation, but which was 
used for more than 20 years prior to irM)4. and which then developed 150 
horsepower. 

27. In addition to the industries which obtain tlieir water throui^rh the Lock- 
port Hydraulic Co. thei-e iire a number of large manufacturing plants being 
<)perate<^l at the city of Lockp.ort by p<nver produced from the surplus water 
of the camil spilled fr(uu the canal below the locks and used successively in the 
I)rogress of the water down the chMunel of Eighteeundle Creek. The use 
of the water spillefl from the lower level of the canal is not covered by any 
contract with the State of New York, and it is understo<Hl that the State of 
New York derives no revenue from it. Furthermore the State engineer and 
surveyor. Mr. Henry A. Van Alstyne, protests ngninst the granting of any permit 
by the United States to pr.rties using water spilletl from vhe c;aial, on the ground 
that it will impose an obligation on the State of Nov.- York to furnish the amount 
of water covered by !he permit, an obligation which does not now exist. 

2S. To supply losses due to evaporation and leakage it will probably be 
necessary under any circumstances to jiass a certain amount of wnter around 
the locks from the upper level to the lower level, so that the amount so trans- 
ferred does not appear to have any particular bearing on the sub.iect of this 
investigation. The real question to be determined is the amoiuit of water 
th<:t is taken frOin the canal for power purposes and not returned thereto. 

20. Keli;!ble gaugings mi'.de under the direction of the State engineer and 
surveyor of the State of New York show that the average amount of water 
flowing eastward in the Erie Canal in the rock cut at the city of Lockport 
above all points of diversion of water for power is s05 cubic feel per second, 
and that the flow in the canal below the locks at Ix)ckport and below all 
points where water is diverted for power or other purposes is 612 cubic feet 
l)er second, so that there is diverted from the canal in the city of Lockport 
193 cubic feet per second. This includes both the water diverted for poAver 
and the water passing over the canal spillway. 

30. As Jill w;.ter used at Lockport. whether permanently diverted from the 
oan:d or whether transferred from laie level to a lower le\el of the same 
canal, is brought from Lake Erie in a watei-Wiiy constructed and paid for 
entirely by the State of New York, it would seem that any permit granted by 
the United States for the di\ersion of water from the Erie Canal should be 
granted not to the individual users, but rather to the State of New York. The 
same principle is followed i!i the case of the Niagara Fa.lls I'ower Co. and the 
Niagara Falls Hydraulic Power & Manufacturing Co.. each of which owns its 
intake cnnat and has teiiants taking water therefrom, thou.gh the permit is 
granted for the full amount to the owner of the intake canal. 

.31. Conflicting informati(m has been leceiveil concerning the amount of Lake 
Erie water that is taken from the Erie Can;;! by the spillway and gates at 
Medina. N. Y. Mr. Frriuchot. the sup.erintendent of public works. State of 
New York, stated, under date of July IT. that he believed the amount of 
water fed into the canal from Oak Orchard Creek and (Jenesee River was 
practically equal to the amount abstracted from the ca.nal. while Mr. P.ond. 
the chairuian of the advisory board of consulting engineers. State of New 
York, is authority for the statement that the Oak Orchard feeder supplies in 
low ye;<rs only 10 cubic feet per second, while the amount abstracted is about 
175 cubic feet i>er second. Assuming the latter information to be more nearly cor- 
rect, the maximum .-imouut of I>ake Erie water diverted from the canal at 
this point is 105 cubic feet per second. The total amount of Lake ICrie water 
that is permanently diverted from the Erie Canal .at times of minimum flow 
in the f(>eder is therefore 103 plus 105. or 3.58 cubic feet per second, and it 
is recouunended that a iternnt for this amount be issued to the State of New 
York. 



220 PRESERVATION OF NIAGARA FALLS. 

32. If it be detorniinefl that the amount of water occasionally ustxi for 
sluicing debris and ice must be included in any permits that are granted, the 
interested parties are, in my opinion, entitled under the law to permits for 
diversion as follows: 

Cubic feet 
per second. 

Niagara Falls Hydraulic Power & Manufacturing Co. in greatei- detail than is 

Niagara Falls Hydraulic Power & Manufacturing Co 6,403 

State of New York 35S 

33. Descriptions of the power plants of the Niagara Falls Power Co. and the 
Niagara Falls Hydraulic Power »& Manufacturing Co. in greater detail than is 
given in the body of the report are appended hereto, marked Appendix K and 
Appendix L. They were iirei)ared b.y Mr. Earl Wheeler, electrical engineer, 
who assisted in the examination. 

A'ery respectfully. Charles W. Kutz. 

Captain. Cnrpfi of Enijineers. 
Brig. Gen. A. Mackknkik, 

f'liirf (if Eiif/incers, U. S. A. 



RKPOinS UPON TilK KXISTING WATKR-POWKR SITUATIOX AT NIAGARA lALLS. SO FAR 
AS CONCKRXS THK CAXAUIAX POWER COMPANIES AND THEIR ASSOCIATED TRANS- 
MISSION (•OM]*AN!K.S REPORT BY THE AMERICAN MEMBERS OF THE INTERNA- 
TIONAL WATI inVAYS COMMISSION. 

International Waterways C-imm issiox. 

Office of American ejection. 

Buffalo. N. Y.. Siptcmbcr 29. 1906. 

Mr. .Secretary-: The American members of the International Waterways Com- 
mission have examined the report dated August 15, 1900. liy Cajit. Charles W. 
Kutz. Cnri)s of Engineers. United States Army, upon the subject of permits 
to the power companies at Niagar;-. Falls, referred to them by your indorsement 
of Septentbev ;". They have the honor to return it herewith, and to submit in 
connection therewith the following remarks: 

In our report.^ dated March 19. 1900. we stated that the works i)ro.iected on 
the American side at Niagara Falls would produce 342.tl()0 horseiK)wer, besides a 
snijill amount (m the Erie Canal, and would consume about 28,0(X) cubic feet 
of water per second, while those pro.iected on the Canadian side would produce 
4.32.000 horsepower, besides a small amount on the Welland Canal, and would 
consume .about .".O.OOO cubic feet of water per second. We thought that the 
amount on the American side could be redu-ed to 242.0<^IO horsepower, using 
IS.noo culiic feet of water per second, without inflicting undue hanlshi]) upon 
invested capitiil. l>"t ^ve doubte<l the exi»ediency of atteiuittiug to withdra.w 
the other rights jicquired by the power companies at Niagara Falls. These 
views wei'e adopted by Congress with qualifications. 

In the act apjiroved June 29. 1900. ihe amount of water to be diverted on 
the American side was cut down to l^.tiOO cubic feet per second in the first 
instance, but with the i)rovision that additional amounts may be diverted after 
an interv.al of not less than six mouths if it be found that that can be done 
without detriiiiont to Niagara Falls or the river. 

The amount of power to be generated on the Canadian side was cut down 
from 423.<>fi<) to ;!."iO,<X)0 horsepower, the control of Congi-ess in the matter 
arising from the fact that a very large percentage of the Canadian output 
must, under i)resiMit conditions, find a market in the United States. T'nder no 
circumstances is the total to be incre.isetl. but the amount which may be trans- 
mitted to the Uniie<l States is to be diminishetl as the amount consumed in 
Canada sliall increase. In tliis sliding scale a limit is lixed which divides the 
permits into tMo kinds, one of which may possibly be expe ted to ha\e some- 
what more p(<rniaii«'uc\- than the other, v'z. permits to transiuU electrical I'ower 
from Canada into the United States to the aggregate a.mount of lOO.OOO horse- 
power, and revocable permits for the transmission of additional electrical 
power to the extent .iust indicated. It appears to us that this distinction was 



' l'riiil>"1 in SeniHc ! tuciiini-nf No. Il-IL'. l-'ift.v -ninth Coiiirrcss. Iirs( .-irssion. 



l>KKSKRVATION OF NIAGARA FALLS. 221 

Di.'idi' for !1h' iKUpost' <if iriviiifi :i littlo more asfsnr.-ime of iiei-inniuMicy to cer- 
tain of tlu' pcniiiis tliJiU it wns [lossihle to jxive to ;ill of tlieiu aiul not for 
the i)ur])ose of tryiii;:; .-in exiieiMiiiciit :ih; to the effect ii)ioii tJse Falls of the diver- 
sion of a (jnantity of water so indetinite in anionnt. This view seeuis confirmed 
by the fa.ct that the maximnm amount allowed on the Canadian side. SriO.tHX) 
Iiorsei tower, is ;.!)or<t S] jier cent of the jinionnt mentioned in the report. 42;{.000 
horsepower, while the anionnt jilluwed on the American side. 15.(300 cubic feet 
per second, is aliout S4 i)er ccnit of thiit nientioried in the report, the percentage 
of reduction thus Ix'ini; pr;ictically the same in the two cases. We see no 
reason why revocable permits for the transmission of ijower frcmi Canada into 
the I'nited States, additional to tlie IGO.OdO horsepower first to be autliorized, 
shoiiUl not be issnel without delay if aiiiilication for such iiermits be rec;'ived. 
The Uiw provides for the issuance by the Secretary of War of four Ivinds of 
Iiermits, viz : 

1. Permits to divert water from the Niagara River on the American side to 
an aggregate amount not exceeding 15,600 cubic feet per second. 

2. Revocable permits to direct additional water from the Niagara River on 
the American side to such amount, if any, as shall not injure the river as a 
navigable stream or as a boundary stream and shall not injure the scenic 
grandeur of Niagara Falls, but no such permits shall be issued until approxi- 
mately the 15,600 cubic feet per second mentionetl above shall have been diverted 
for a period of not less than six months. 

3. Permits to transmit electrical power from Canada into the United States 
to the aggregate amount of 160.000 horsepower. 

4. Revocable permits for the transmission of additional electrical power from 
Canada into the United States, but in no case shall the amount included in such 
poiHiiis, U'gether with the KJO.OOO horseiutwer meut'oued above and the amount 
generated and used in C;uiada, exceed 350,000 horsepower. 

Applications have been received for permits of the first and third kinds, but 
in this report Capt. Kutz confines himself to a consideration of those relating 
to the transmission of power from Canada into the United States, deferring to 
a future report all that concerns the diversion of water on the American side. 
He defers also a consideration of the question of granting transmission permits 
for amounts additional to the first 160,000 horsepower, expressing the opinion 
tjhat it is "the intent of the law to delay the issue of such permits until it 
is known what aitpreciable effect, if any. will be produced on the Falls by the 
diversion of the amount of water that will be used under the first limitation." 
As above stated, we do not concur in that opinion, but the fact that no applica- 
tions have been received for permits of this kind is sufficient reason for not dis- 
cussing them at this time. 

Applications for the transmission of power have been received from four 
companies, including the International Railway Co., whose rights under Cana- 
dian law to transmit power to the L'nited States are in dispute and whose 
claims are small compared with those of the other companies. Capt, Kutz rec- 
ommends that no permit be issued to that company at this time, but that 2.500 
horsepower be reserved for the present in order that it may be possible to grant 
the company a permit for that amount hereafter should the controversy over 
its rights under the Canadian laws be decided in its favor. In that recom- 
mendation we concur. 

There will remain 157,000 horsepower to be divided among the three re- 
maining apjilicants. These applicants are the Americrai transmission com- 
panies, but their interests tire identical with those of the Canadian comiuiuies 
from wliom they derive power and n)ust be considered in connection therewith. 

Thev are: 

1. Niagara. Lockport iV Ont.-irio Co.. taking jxnver from the Ontario Power 
Co., apitiying for 90,m)0 horsepower. 

2. Electrical Transmission Co., taking power from the Electrical Develop- 
ment Co., applying for 62.500 horseiiower. 

3. Niagara Falls Power Co.. raking power from the Caiwidian Niagara Power 
<\).. aitplvinu for 121.."iO<t horstpower. 

'I'lie .ipi'lication of the Niagara Falls Power Co. is for 11,500 horsepower more 
than the capacity of the works from which it is to derive power when com- 
lileted as designed. The other companies ask for one-half the capacity of the 
works furnishing tlw i»ower when completed as designed. The total amount 
asked for is 274.000 hoi-sejwwer. 

Capt. Kutz has spared no imiis in the collection of all the facts which have 
a beuiiig upon the question of how the available amount shall be divided 

28305—12 15 



222 



PRESEEYATIOX Oi' XlAGAiiA PALLS. 



auiouj: the three companies. After a careful consideration of the amounts of 
capital invested in the power plants, the amounts required to complete the works 
as desij^nod. their capacity as comitleted und(M' <'X}x^ndituros now made or 
pledged, their capacity as desij?ne<l, the amounts of capital invested in trans- 
mission lines in the United States or on Canadian soil to connect with the 
United States, the contracts made for furnishing and receiving power, aini 
other data, he coi'.cludes tliat there is no sullicient reason for discrlmii-atiori 
betweert the companies except tlieii' relative ability to command the Canadian 
market. The Electrical Development Co. was organized with that market 
lirominently in vifw and is able to obtain a sale thei'e of about 25.000 liorse- 
power more than either of the other companies. Its claim to the American 
market is diminishetl by that amount. If the quantity allotted to (hat com- 
pany be 37.500 horsepower tjiere will remain ]20.*WiO horsei>ower to he equnlly 
livided betweer. the Ontario Power Co. and the Canadian Niagara Power Co.. 
giving them 00,000 horsepower each. "We believe this to be an equitable divisioi' 
of the iM)wor available and we join with Capt. Kutz in the recommendation 
that permits for the transmission of jiower to the Uniled States be granted to: 

Horsepower. 

The Niagjira. Lockport & Ontario Co. from the Ontario I'nwer (Jo 00,000 

The Electrica' Transmission Co. from the Electrical Develoiiment Co 87.500 

The Niagara Falls I'ower Co. from the Canadian Niagara Power. Co 00, (mki 



Yours, veiy respectfully. 



Hon 



AV. H. Taft. 

Secretary of War. 



O. H. Ernst. Chairman. 
Glokok Clinton. Mewbcr. 
E. E. II.\SKKM., Memher. 



RKI'ORT I;Y C.\PT. ClI-VKLKS W. KITZ. COHl'S OK KNtilXKKRS. 



War Dkpartjjk.nt, 
Okfick of thk Chiw OF Encinkkks. 

Wafi]iiiiti1oiK August 1.'>. 1906 
General: 1. In compliance with the written orders of the Secretary of War, 
dated July 14. 1906 (copy attached marked A), and your subsequent oral in- 
structions, I have the honor to submit herewith the following report n\un\ tlie 
existing power situation at Niagara Falls: 

2. The information called for by the Secretary of War concerns not only 
the power companies now diverting water on the American side, but also those 
on the Canadian side who are seeking through their associated transmission 
companies to import power into the United States. This latter information, 
being of more immediate importance, will be considered first. 

3. The four Canadian companies applying directly or through their trans- 
mission companies for permits to import power are the Ontario Power Co., 
of Niagara Falls; the Electrical Development Co., of Ontario (Ltd.): the 
Canadian Niagara Power Co.. and tlie International Railway Co. 

The Ontario Power Co. 

4. This comi)any was incorporated by au act of the Dominion Parliament in 
18S7, and is not limited by its statutory rights to the product ioi\ of any given 

' amount of power. .\11 its plans, however, are subject to the approval of the 
commissioners for the Queen Victoria Niagara Falls Park. The present ap- 
proved plans were designed for the production of ISO.OOO electrical horseiiower. 
using its Niagara River intake. In addition to its Niagara River rights, the 
Ontario Power Co. has a franchise for taking water from the Welland River, 
but beyond the i)urchase of a limited amount of land for right of way for 
the intake tunnel or canal this franchise has not yet been exercised. 

5. The Niagara River plant as designed consists of headworks located above 
the first line of rapids, three main conduits or flumes 0.000 feet or more in 
length leading the water though the park to a point below the Falls, thence 
by penstocks in tunnel through the clifl: to the generating station in the gorge, 
and lastly a distributing station or transformer house situated on the high 
bluff directly above. 



1 



PRESERVATION OF NIAGARA FALLS. 223 

6. The heiidworks arc constructed for the full devolopuient — that is, isO.OOO 
electrical horsepower. Only one of the three main conduits has been built, 
and this has a capacity sutlicient, it is claimed, to supply water to 6 gen- 
erating units, n with a capacity of 10,000 electriial horsepower each, and 
the remaining o with a capacity of 12,000 electrical horsepower each. The 
valve ch.miber of No. 1 conduit is complete for 7 units except 3 valve motors, 
and rough excavation has been made foi- the valve chaml)Pr (»f Xo. 2 conduit 
in which an eighth valve has been inst;illed, st) th:it No. 7 can be operated 
either from No. 1 or No. 2 conduit. lv\ca\ati(m for the power house is com- 
plete for 8 units, the foundation and structure for U units. The central or 
main portion of the transformer house was designed and built for the control 
of 22 imits, the number originally planne<l for the completed plant. The wings 
of the transformer house as now built have a capacity for 8 transformei" sets, 
corresponding to 8 generator units. Four transformer sets are now installed. 
In addition, room is provided in the central jiart of the building for the pas- 
sage of 4 additional transmission lines without change of voltage. 

7. The books of this comitany show an expenditure of .$5,142,000. exclusive 
of rentals and rights, with $40().000 due on uncompleted contracts. This total 
expenditure on power plant of $5,542,000 will complete the installation of four 
units. The installation of two additional units, orders for which have recently 
been given, will require an additional expenditure of .$.315,000. Of the four 
units now installed, three are ready for service, and the fourth lacks only a 
minor part to make it complete. The order for the fifth and sixth units calls 
for delivery within 12 months. The estimate furnished by tlie company of the 
cost of completing the approved design is .$6,500,000. 

8. In addition to the exj'enditures of tre Ontario Power Co. itself, there has 
been expended by the Ont.irio Transmission Co. nearly $1,000,000 in real 
estate, transmission lines, stations, etc. For financial reasons n separate or- 
ganization is maintained, but the company is pr.nctically identical with the 
Ontario Power Co. It owns an interest in the transformer house and owns all 
the transmission lines in Canadian territory. The Ontario Power Co. has 
Canadian contracts for about 6.000 horsepower, with tlie option on the part 
of the purchaser to increase the amount to about 1.3,000 horsepower. It has a 
contract with tlie Niagara. Lockport & Ontario Power Co. to deliver at the 
international boundary, for use in the United States, 60,000 horsepower, with 
the option on the part of the purchaser of increasing the amount to 180,000 
horsepower. The latter contract is dated July 16, 1904, and provides that the 
60,000 horsepower shall be delivered on or before January 1. 1907. with the 
v^ption .on the part of the purchaser of taking 60.000 additional horsepower 
January 1. 1911. and the third 60.000 horsepower on January 1. 1915. 

9. The Niagara, Lockport & Ontario Power Co. is building switching and 
transforming stations and constructing transmission lines for the purpose of 
carrying out its contract with the Ontario Power Co. In furtherance of its 
plans the company has acquired a private right of way containing about 3.200 
acres of land, with an unbroken strip 300 feet wide from the Niagara River 
to Lockport. a distance of 17 miles ; thence 200 feet wide to the suburbs of 
Rochester, a distance of 55 miles; thence 100 feet wide from the suburbs of 
Rochester to Fairport. a distance of 12 miles. In addition, a similar private 
right of way owned in fee simple. 100 feet wide, has been acquired from Lock- 
port southward through the suburbs of Buffalo to the Lackawanna Steel Co.'s 
plant, a distance of 27 miles. The company has erected two transmission lines 
from the international boundary to Loclqiort, each with a capacity of 30.000 
horsepower. From Lockport to Syracuse a single line, partly over the right of 
way of the West Shore Railroad, has been completed, with a capacity of 10.000 
horsepower, and a second line of greater capacity is under construction. On 
the double line from Lockport to Buffalo work is in progress. 60 per cent of the 
poles having been erected. Each of the Buffalo lines is to liave a capacity of 
30.000 horsepower. 

10. The books of this company show an expenditure of $2,785,000. of which 
$1,200,000 is represented by right of way and $1,162,000 is represented by con- 
struction. The Niagara, Lockport «& Ontario Power Co. has actually executed 
contracts which call for the delivery within the near future of 6.000 horse- 
power, with ]n-ov!sion for fixed increases at intervals varying from three 
months to three years, so that at the expiration of that time they will have a 
firm eontri'ct with their present customers for 14.240 horsei)ower. with options 
on the part of the purchasers which give them the right to uicrease the amounr 
to 70,000 horsepower. The first of these contracts is dated June. 1005: tlirec 



224 PRESEEVATION OF NIAGARA FALLS, 

'itlicrs in (lio f.-ill of IV'Oo. one in M;n<li. two in Ainil, nutl two in Mny. 1900. 
In ;ul<lition the company claims to have contracts verbally closed for lo.OOO 
additional firm horsepower, and negotiations ponding for 25.000 firm horse- 
power, making a total of 52,000 horsepower, for which they hope to have a 
market in the near future. The optional amoiuits named in these contracts 
and negotiations aggregate 166,000 horsepower. At the time of the ex:imina- 
tion this company was actually transmitting to the United Slates 7(Vi horse- 
Itower. 

Ti;c J-JIcctricdl Den I'jiniK iif Cd. 

11. This comijany was incorporated by net of the legislature of Ontario (5 
Edward VII. ch. 12), for the purpose of developing, distributing, and selling 
electrical power and for other purposes, but its charter gives it no specific 
right to take water from the Niagara Itiver or its tribut;iries. To this comitauy 
was assigned an ngeemeut which three citizens of Canada had entered into 
with the connnissioners for the Queen Victori;'. Ningara Falls Pjirk. by virtue 
of which it Is authorized to t:ike from the Niagara Ilivar water sutficieut to 
develo]! 125.0(10 eleclricjil horsepower. The amoiuit of water for this purpose 
is computed to be lO.S(X) cubic feet per second. 

12. In pursuance of this agreement, a plant has been designed and partially 
constructed that will be capable of producing the full amount of iK)wer author- 
ized. The lieadworks are completed except for the removal of the colTerdiim, 
while the wheel pit and tailrace tunnels are practically completed for the full 
development. Contitict has been entered into for the construction of two-thiids 
of the power-house structure. The metal work of this iiart of the building is 
practiciilly conipleteil and the stonework 50 per cent coniiileted. This will pro- 
vide cover for 7 of the 11 units that are projected, each of which is designed 
with a capacity of 12.500 electrical horsepower. Only four generating units 
have actually been ordered. Two of the four have been delivered at the power 
bourse and are now being installed ; one of the two was being made ready for 
test nt the time of the examination, and tmless some unforeseen accident occurs 
should be ready for service during the month of September, and the other three 
at intervals of six weeks to two months thereafter. The transformer house as 
constructed is for 5 units. One bank of three transformers is on the ground, a 
second bank was scheduled for shipment August 1. and the third bank August 
15. By its he.ulworks. wheel pit, and tailrace development the company is com- 
mitted' to the installation of 11 units, by its power house to the installation 
of 7 units, and by its contracts for machinery t(t the installation of 4 units. 

lo. The books of the company show an expenditure to July 1, 1906, on the 
power plant of $4,500.tK)0. The liabilities, incurred and unpaid, for completing 
the installation of 4 units are $1,760,000, a total iuv-estinent in plant of 
$6,300,000. To complete the installation of 11 units wonld cost $1,576,000. 

14. This comi)any has atfiliated with it the Toronto & Niag.ira Power Co.. 
organized for the {airpose of transmitting power from Niagara Falls. Ontario, 
to Toronto. Its transmission lines, which, except for a short section, are com- 
pleted, will liave a cap.-.city of 20.0(K) horsepower, and represent an investment 
of $1..S7().(K)0, with $750,000 required for completion. The demands on this 
company from Toronto and intermediate territory will probably aggregate be- 
tween 30,000 and 40.000 horsepower. The Electrical Development Co. was 
organized primarily for the purpose of furnishing power to Canadian points, 
and its arrangi'meuts for .selling ix)wer in the I'nited States are in a more or 
less embryonic state. For distribution in the United States there was organized 
the Electrical Transmission Co. of Niagara Falls, a corporation chartered under 
the laws of the State of New York. This company at present is a mere h<ilding 
company, keeps no books, and all the exi>enditures made in its name have been 
advanccHl bv the Electrical Development Co. The books of the Electrical Devel- 
opment Cf).' show an expenditure on this account of $246,000. which was used 
for the purchase of an interest in the Niagara Falls Gas & Electric IJght Co., 
Niagara Falls Gas Co.. and the Albion Power Co.. ttnd for the purchase of real 
estate in Niagara Falls, $40,000 being the amount of the last item. This invest- 
ment, together with the holdings of the " Nicholl syndicate," a group of men 
who control the Electrical Development Co.. gives control of these subsidiary 
comi>anies to the power comapny. /s,w^/^/w^ 

15. The value of the properties thus controlled is approximately $1,000,000. 
The Niagara Falls Electrical Transmission Co. also has an agreement with the 
[nternatii.nal Ra.ilwav Co. looking to the building of a bridge crossing Niagara 
River lo he owned jointly by the two companies, across which it is proposed to 



PEESERVATION OF NIAGAEA FALLS. 225 

convey power that is sold by the Electrical Developniont Co. to the Niaj^ara Falls 
Electrical Transmission Co. Negotiations with this company (I. U. Iv. Co.) 
also contemplate the granting to the transmission company of a right of way 
for its transmission lines over the right of way now being acquired by the r.'.il- 
way company between Niagara Falls and Buffalo. This agreement with the 
International Railwaj' has not yet assumed the form of a written contract. For 
carrying its transmission lines to Rochester this company proposes to use the 
right of way of the Buffalo. LockiH)rt & Rochester Electric Railway. There is 
no contract to this effect, but as the Buffalo. Lockport «& Rochester Railway is 
controlled by the NiclioU syndicate above referred to, there is a conununity of 
interest. The Buffalo, Lockport & Rochester Railway is now under construc- 
tion, the contract for grading a double-track road and for the construction of a 
single-track road having been entered into with J. G. While & Co., coutractor.s, 
on Jlay 14, 190G, at a cost of .$2,250,000. In addition to the above the Electrical 
Transmission Co. has acquired franchises in its own name in seven cities and 
towns in western New York for the sale and transmission of power, and through 
the Niagiua Falls Gas & Electric Light Co. and the Albion Power Co. it con- 
trols 20 other such franchises. The Niagara Falls Electrical Transmission Co. 
has not executed any contracts for the delivery of power, but expects that its 
allied interests will require 17,500 horsepower. This expectation is based on 
the use by the Niagara Falls Gas & Electric Light Co. of :J.000 horsepower, 
though the amount now distributed by this company is about 10<J horsepower. 
It also includes an estimate of 4,000 horsepower for the Buffalo. Lockport & 
Rochester Railway Co. This amoun.t is based on a double-track roa<l. v\'hile the 
contract for the construction of the road calls for only a single track at the 
present time. The company also submitte<l confidentially a list of corporations 
who had made inquiries with reference to the purchase of power from the 
Niagara Falls Electrical Transmission Co., together vrith the amount of power 
which they would probably require. This list aggregates 141,000 horsepower 
It is needless to say that these inquiries involve no obligation on the jtart of 
either party. 

'J'liv Vauudian Xhit/dia roirrr Co. 

10. This company was incorporated by an act of the Legislature of the 
Province of Ontario in 1802, and is not limited by its statutory rights to the 
production of any gi\en amount of power. All its plans, however, are subject 
to the approval of the commissioners for the Queen ^■ictoria Niagara Falls 
Park. The present a[)proved plans were designed for the production of 121,000 
horseijower — that is. 11 units each with a capacity of 11,000 horsepower. Re- 
garding one of these units as a spare, so as to put it on the same b.ssis with 
the two companies previously described, the nominal capacity of the completed 
plant may be taken at 110,OC)0 horsepower. This comi)any also claims the right 
to double this plant, basing the claim on that clause of the original charter 
which limits its occupation of park lands to a length of 1,200 feet, the length 
of the power house now designett being 000 feet. As this right has in no way 
been exercised, and as it could not be exercised without the api^roval of the 
pr.rk conunissioners, it need not be further considered. 

17. This plant operates under an effective head of 141 feet, and for the de- 
velopment of 110,000 horsei lower will require about 9,500 cubic feet of water 
per second. The headworks consist of a head canal with a fore bay 000 feet 
wide extending the whole length of the power house. The headworks, gates, 
wheel pit, and tailraee tunnel are completed for the full development. Five 
generating units are conqiletely installed and a portion of the power house 
sufficient to cover them has been completed. The transformer station is also 
of sufficient size to acconmiodate 5 units. By its headworks. wheel pit. and 
tailraee development, the company is committe<l to the installation of 11 units: 
by its power house and transformer house to the installation of 5 units. 

IS. The books of the company show an investment to July 1, 1000. including 
liabilities incurred and unpaid for completing the installation of 5 units, 
amounting to $0,250,000. For comparative purposes the value of the franchise, 
given as $nOO.OO<X should be deducted, making the cost of the installation .$5,350.- 
000. To complete the installalion of 11 units would cost probably $1 .2.50.000. 

19. This company is an allied company of the Niagara Falls Power Co.. and 
save for the maintenance of a separate organization, is identical with it. It 
expects to market practically all its power through the Niagara Falls Power Co. 
or through the hitter's agents. An underground conduit, with a capacity of 
32S,000 horsepower, connects it with the plant of the Niagara Falls Power Co., 



226 PRESEKVATIOX OF >;IAGARA FALLS. 

and cables wilL a capacity of 32,000 liorseinnver are now iiit;talleil. A seia- 
I'ate transmission line, capacitj- 25,000 liorsei)ower. running for 10 miles along 
the west shore of the Niagara River to Fort lOrie is under construction, together 
with the towers requii-ed to carry the cables across the river to Buffalo. For 
its transmission lines it has actually expended or is committed bv contract t.i 
the amount of $430,000. 

20. It is now delivering 1,340 horsepower to Canadian tenants, who have th€ 
option of increasing the amount to 4.237 horsepower. At the present time there 
is no detiuite contract covering ihe sale of the power intended for delivery in the 
United States. This is explained by the intimate financial relations existing 
between the Niagara Falls Power Co. and the Canadia.n Niagara Power Co. At 
the time of the examination it was actually transmitting to the United States 
about 36,000 horsepower, but the combined load sheet of the two companies 
shows that the maximum amount thus far delivered to consumers is about 
85,000 electrical hoi'sepower. 

Iiitcriuitiuiiul RnUKUy Co. 

21. This company is incorporated both in the State of New York and in the 
Dominion of Canada. In its first capacity it owns and operates all the electric 
railways in the city of Buffalo and adjacent towns, and the city of Tonawanda, 
Erie County, and the cities of Lockport. Niagara Falls, and the intervening ter- 
ritory in the county of Niagara, N. Y. Under its Canadian charter it owns and 
operates an electric railway along the shore of Niagara River from Chippewa to 
Queenstown. It also owns two bridges over the Niagara River, one just below 
the Falls and one at Lewiston, over both of which it has specific legislative 
authority to transmit power. 

22. Its power ])lant is located in the Queen Victoria Niagara Falls Park, which 
l)lant was acquired when it acquired the property and franchise of the Niagara 
Falls Park and River Railway Co. In acquiring this railroad it paid for the 
equity therein $733,000, and assumed a bonded indebtedness of .$600.0<X). making 
a total investment of $1,333,000. It is claimeil that this value was fixed largely 
by the power rights of the Niagara Falls Park and River Railway Co. At the 
time of its acquisition the power plant represented a cash outlay of $141,000. 
Since that time further expenditures have been made upon its power house and 
equijmient of $125,000. so that the actual investment of this company in its 
power property at Niagara Falls, Ontario, is about $265,000. With the ma- 
chinery now installed 3.600 electrical horsepower can be generated, the effective 
head being 6S feet. I'nder its charter none of the power may be sold, and its 
use is limitetl to operating and lighting the railway, the Canadian division of 
which now uses from 800 to 1,2(X) horsepower. The company claims the right 
to transmit the balance to the United States for use on that portion of its sys- 
tem. This right, however, is questioned by the commissioners of the Queen 
A'ictoria Niagara Falls Park, and in their annual report for 1905 they say that 
they caji not see their way clear to .-ipprove the plans for the transmission of 
this power through the park. The matter has been referred to the Dominion 
Government for decision. AVhile it is understood that some progress has been 
made toward a solution, final action has not yet been taken. 

23. The com])auy, in its application to transmit pow'er to the United States, 
asks for 8,000 horsepower, the intention being to enlarge the power i>lant for this 
Iiurpose, at an estimatetl cost of $150,000. Pending the determination by the 
Dominion Government of this company's rights, it Is believed that no permit 
should be granted to them. Having in mind, however, the fact that they are 
now generating 2,500 horsepower more than they can use on the Canadian side, 
and the fact that the transmission of this power to the United States would 
result in an estimated saving of $30,000 a year, it would seem equitable to re- 
serve 2,500 horsepower for the i)resent of the 160,000 horsepower for which per- 
mits can be granted, so that a permit for this amount could be issued in case 
the present cnntroversy is decided in favor of the railway cnnq)any. 



PRESERVATION OF NIAGARA FALLS. 



227 



24. Tlie priucipal facts with reference to the three big Canadian companies 
are tabulated as follows : 



l^xpenditures to date in power plants, exclusive of rights and 
franchises 

Amount required to complete existing contracts and orders 

Amount required to complete plants to projected size 

l:ffective head feet. . 

Capacity of generating machinery actually installed, electrical horse- 
power 

Nominal capacity of generating machinery installed and ordered, 
electrical horsepower 

Nominal capacity of projected plants electrical horsepower. 

Amount invested and obligated for Canadian transmission lines 

I'robable sale of power in (. anada horsepower. . 

.\mount of water required for machinery installed and ordered, in- 
cluding exciter sets — efficiency of the "unit being taken at 70 per 
cent " cubic feet . . 

.\movmt of water required for plants as projected do 

Actual expenditures by their associated American transmission 
companies 



Ontario 
Power Co. 



$5, 



142,000 

15715,000 

,500,000 

180 

42,000 

(JbjOOO 

180,000 

, 000, 000 

10,000 



■1,250 
11,700 



Electrical 
Develop- 
ment Co. 



$4,500,000 

$1,760,000 

$1,570,000 

135 



50,000 

125,000 

!i52,62O,0OO 

30,000 



4,300 
10,800 



Canadian 

Niagara 

Power Co. 



84,072,000 

$078,000 

$1,250,000 

141 

5.5,000 

55,000 

110,000 

'$430,000 

5,000 



4,500 
9,500 



82,785,000 2 $246, 000 $600,000 



1 The major portion of this amount has been expended in the construction of transmission lines intended 
for deUvery of power to the United States distributing companies. 
- This does not include any expenditures by the NichoU Syndicate. 

25. If these companies were limited iu their output to the capacity of the 
geueratiug; machinery now actually installed and ordered, their investment iu 
power plant, exclusive of franchises per horsepower developed, would be ap- 
proximately as follows; 

Oiitario Power Co $S9. 00 

Klectrical Development Co 125.00 

Canadian Niagara Power Co 97. 00 

If permitted to develop to the limit of their approved plans the investment* 
in ix)wer plant per horsepower developed (nominal capacity) would be: 

Ontario Power Co $68.00 

Electrical Development Co 62.00 

Canadian Niagara Power Co 60.00 

These- figures must be considered as only approximately correct, owing to the 
different methods of cost distribution used by the several companies. The aim 
has been to take the actual cost of the power plants, exclusive of rights, rentals, 
and franchises. Regardless of their absolute accuracy, -or even their relative 
accuracy as between the three companies, they serve to sliow the extent to 
which tiie companies by their expenditures and contracts have committed them- 
selves, and also the ai)in-oximate losses which they will sustain if they are 
limited to the production of an amount of power less than their projected ca- 
pacity. All three of these power developments were undertaken in good faith 
several years ago and long before the agitation in Congress which led to the 
]iassage of the present law, and there is no evidence that any of their subse- 
quent tiausaetions were made with the object of securing rights which they had 
not always intended to claim. 

2n. The total cajiacity of the generating machinery installed and ()rdere<l for 
Ihe three jilants is 171.000 horsepower. The probal)le demand in the near future 
from Ci'.nadian markets will not exceed 40,000 horsepower, leaving 131.000 
horsepower for sale in the United States. The granting of permits for this 
amonnt wc-uid permit the utilization to its full cai)acity of nil machinery now 
installed or ordered, but would not permit any further development and would 
not afford a reasonaltle return on the moneys now invested unless the prices 
to the consunu'rs were measurably increased. In order that such relief as is 
lunv possible may I)e affiu'ded. it is i-econimended that iiermits l>e granted for 
l.")7.0(Mi liorsi'ijower. Ihe niaxiniiun anuunit iindei the lirsi liniiialioi!. less 
L',r»00 horsepower reserved for the International Railway Cd. 

27. The "Oiiditiois surnMUiding th(> development of the Canadian jx-wer coui- 
l»anies differ so materi.ally Mint an I'x.-ict statement of tlieir n-lative rights to 
the Aniei-ic.-in market is not possil)le. Tlie Niagara. Lockpoi't iV- Ontario Power 



2^0 PPESERVATIC>X OF NIAGARA FALLS. 

«'".. tlie (listribiUinK -.'Ui'Ut h> the Uiiiletl St:iteH for tlie Ontarid I'owi-i- t'o.. b:is 
expeiidetl a lai^c sum in oi>'i!ing ui) a new market. Tlie Klectrir:;! Develop- 
ment Co. .'•tarteil itriniarily to develop the Canadi.-.n niail<et. ami its plans for 
the American market have not yet been fully mature<l, while the plant of 
Canadian .Xiajrara Power Co. is virtnally an addition to that of tlie Xiagar-* 
Fall's Power Co. Coiisiderinj; alone the investments in power phint. there is 
no apparent reason why any distinction should be made between the power 
companies in the amount of power which they should be iiermitted to send inlo 
'he I'nited States, ^^'!•ile the nrojectetl develojjnient of the Ontario Power Co. 
is co!;sideral)Iy greater than that of the other two companies, this apparen; 
advantage is b:; lanced bj- the fact that the other two companies are more fully 
connnitted by exiienditures already made to the complete development. If the 
relative investments of the three transmi.ssion comi)anies associated with them 
for disiribution in the I'nited States ai'e alone considered, the claims of the 
Niagara, Lockport & Ontario Co. are unquestionably s-'.perior to those of the 
other tiansmission »(!iiipanies. As the ob.ject of the law is to restrict, directly 
or iadirediy. the amount of water divertetl. it lias been suggested liiat some 
weiiiht should attach to the fact that the Onti-rio Powc'r Co. makes greater use 
of ihe water that it diverts th.iu either of Ihe (tther con.>i)anies. Es'ch of the 
companies, however, fully utilizes the head incident to its geographical location, 
and any distinction in the matter of jiernnts based on relative natural advan- 
tages would appear to be unjust. 

'2S: The Electrical Develoiunent Co. had for its primary object the furnish- 
hig of power to various i)oints in CaTiada, as is indicate<l by the construction of 
Its Toronto line, yet the demand for electrical power in Canada within the 
econouncal radius is so limited as to make it unreasonable to suppose tluit this 
com]!any had given no thought to the marketing of a iiart of its p.ower in the 
I'nited States. The Electiical Development Co. is i)l.inning to sell between 
oO.<MlO an<I 40.(X)0 horsepower in Canada, which is jirobably from 20.000 to 
25.000 horsepower in excess of what either of the other two companies will 
sell in Canada, a fact which should receive consideration in fixing tlu> amount 
to be transmitted to the United States. On the other hand, any greater dis- 
crimination against the Electrica.l Development Co., which is owned almost 
wholly by Canadian cai)italists (the other two coTupanies bring owned almost 
wiiolly by Americans), nsay give ris<' to a feeling of resentment on the part 
of the i»eoi)le of Canada and tend to retard the negotiation of a treaty between 
the two countries '-oncerninu the preserxation of Niagara Falls. 

2[). The applications for permits made by the transmission eomjianies are as 
follows : 

I [oi-sepo\ver. 

Niagaia, Loclqiort »& Ontario Co., from the Ontario Power Co 00,000 

Electrical Transmission Co.. from the Electrical Development Co 02,500 

Niagara Falls Power Co., from the Canadian Niagara I'ower Co 121,500 

The application of the Niagara. Lockport & Ontario Co. is based ujHin the 
desire to secure a reasonable return on the investment already made, but con- 
sidering the date named in its contract with the Ontario Power Co. for the 
delivru-y of the second block of 00,000 horsepower, i. e.. January 1. lltll. and 
having in nnnd the fact that any production of power in excess of OG,0(K) horse- 
power means the construction by the Ontario Power Co. of a second conduit 
and a conseipient exiuMiditure of .$o.250.000, it is believed that a present limita- 
tion to 00.000 horsei)ower will not work undue hardship. 

;50. The application of the Electrical Transmission Co. contemplates the 
marketing of one-half of the total output of the Electric Develoi)ment Co. 
Considering the situation of the latter company in the Canadian market and 
the limited extent to which the Electrical Transmission Co. has comnntted 
itst'lf by its expenditures, a present limitation to 37,5(X) horseixiwer does not 
aiipear to be inequitable. 

ol. The plant of the Canadian Niagara IVnver Co. is intended to supplement 
that of the Niagara Falls Power Co., and a fair estimte of the rapidity with 
which its power will be marketed is found in the rate of growth in the past 
of the Niagara Falls Power Co. This has amounted to about 20 per cent in 
recent years, with a present ontjiUt of both companies amounting to S.3,000 
horseiiower. Assuming that the same rate of growth will continue, thmigh in 
all probability it will be veductxl owing to i)ower which the other comi^anies 
expect to market in this territory, it will be two or three years before the full 
capacity of the Canadian plant as now installed will be utilized. For these 



PRESERVATION OF NIAGARA FALLS. 229 

reasons a iireseiit limitation to (>0.0C)() hoiseiKnvor will not. in my jntlgment. 
sei'ionsly intfiferc wllli its normal doN olopnifnt. 

i>2. If permits are granted for these amonnts the Ontario Power Co. would 
be jnStified in installing a seventh unit as a spare, the Canadian Niagara Power 
Co. wonld be jnstified in installing two more nnits, one as a spare, making the 
nominal capacily of its i»lant (515,000 hors(>power. The Electrical Development 
Co. would be .lustitied in installing three more nnits, one of them a spare, mak- 
ing the nominal capacity of its plant 75,000 horsepower, half of which, the 
proportion asked for, it wonld lie permitted to transmit to the United States. 
If each installs these nniis the relative investment in power plant, exclusive of 
franchise, per horsepower developed (nominal capacity) would be: 

Ontario Power Co $92.00 

Electrical Development Co 91.00 

Canadian Niagara Power Co 87.00 

Ho. Ba.sed upon what precedes, it is recommended that permits for the trans- 
mission of power to the United States be issued as follows : 

llorsi'power. 

Niagara. Lockport & Ontario Co., from the Ontario Power Co 60,000 

Electrical Transmission Co., from the Electrical Development Co 37.500 

Niagara Falls Power Co.. from the Canadian Niagara Power Co 60,000 



157, 500 



In order that the various companies may proceed with this limited develop- 
ment, it is further recommended that ix^rmits for siich amounts as may be 
authorized be issued without delay. 

84. As to the question of granting transmission permits for amounts addi- 
tional to the first 160.000 horsepower, it is believed to be the intent of the law 
to delay the issue of such permits until it is known what appreciable effect, if 
any, will be produced on the Falls by the diversion of the amount of water 
that will be used under the first limitation. If this interpretation of the law 
is correct, the granting of such i)ermits will be a matter for the future, as it 
will be fully a year before the companies will be in a position to develop 160,000 
horsepower, in addition to the amounts sold in Canada. 

',]~K The iiifoi-;i.ali.)ii cui^t.-rn: .1 in tliis jiariial ri'itort was oi>ta!U('tl fr;i]ii the 
parties interested and its important features verified by a personal inspection 
of the works and a general examination of the books and records of the various 
companies. These inspections and examinations were made July 20 to July 
28. 1900. and descriptions of the power plants of the Ontario Power Co. (Ap- 
pendix B). Electrical Development Co. (Appendix E), and the Canadian Niagara 
Power Co. (Appendix G). and of the transmission lines of the Ontario Trans- 
mission Co. (Apjiendix ('), Xiag;ira Lockport & (/utariii Power Co. (.Vppcndix 
D), and the Toronto »fc Niagara Power Co. (Appendix F), in greater detail than 
in the body of the report, are aiipended hereto. They were prepared by Mr. 
Earl Wlieeler. E. E., who, with Mr. F. D. C. Faust, a representative of the 
Department of Justice, assisted in the examination. A photographic cojiy of a 
map of Niagara Falls, taken from a monograph prejiared in lOfW by the Can- 
adian Society of Civil Engineers, is also appended. 

Hi}. The preparation of that part of the report which concerns the diversion 
of water on tlie American side has been delayed by the nonreceipt of certain 
information, and will be submitted later. 

\'ery respectfully, Charles W. Kutz, 

Cdi't'iiii, Corpft of Engineers. 

Brig. Gen. A. Mackenzie, 

Chief of Engineers, U. .S', A. 

The Chairman. Is tliere any other o'entlemaii present who de.sires 
to be heard briefly? Hearinif no re^jionse. this committee will stand 
adjourned. 

Thereupon, at 4 o'clock p. m.. the coiinnittee adjourned until Tues- 
day. January 28. 1912. at 10 oVlock a. m. 



230 preservation of niagara falls. 

Committee on Foreign Affairs, 

House of Representatia'es, 

Tuesday, January 23, lOm. 
Mr. Sulzer in the cliair. 

STATEMENT OF MR. CLARK H. HAMMOND, CORPORATION COUN- 
SEL, BUFFALO, N. Y. 

The Chairman. You may proceed, ]\lr. Hammond. 

Mr. Hammond. Mr. Chairman, I was sent down here to repre>ent 
the city of Buffalo b}- a unanimous resolution passed b}^ our board of 
aldermen yesterday. That is the only 'excuse I have for being here. 

My ])osition in comino- down here is one of wanting to learn and 
find out. I do not knov/ that there is anything I can say that will 
be of an}- particular benefit or use to your committee. Congressman 
Smith an<l I had a talk last Sunday in Buffalo and he asked me what 
some of my experiences had been Avith regard to the public service 
connnission in matters where I represented the cit}', and I Avas very 
glad to give him any information I had. and he thought perhaps it 
would be of some benefit to this committee, as I understood him. to 
give these facts to the committee. 

I have not made an examination, I would like to say. of the law; 
T have not had the opportunity since the matter was brought to my 
attention. But I do know tliis: I have understood from Congi'ess- 
man Smith that there was some claim made to your committee that 
it was not necessary to have any Federal control of this matter, 
l)ecause of the fact that the public service commission had ample 
authority and control. 

Now. it is the furthest thing from my thoughts to say anything 
detrimental to the i)ublic service connnission of the State of Ncav 
York. They are a very excellent connnisison, and very excellent in 
the diiferent matters I have had before them. But in 15)10 we a])- 
peared, at the direction of the city, with a conunittee appointed from 
the chamber of commerce, before the railroad conunittee in the Legis- 
lature of the State of Xew York for the purpose of having the public- 
service commissi<m law amended in order to give that commission 
further and greater power, and we are in a position now that we 
have not a bill under v.hich the public s<n-vice connnission of the 
State of Xew York acts that is adequate to reach all cases, so that 
we wish it was greater in its scoj)e and conveyed greater pov.ers upon 
tlie commission than it does convey. 

I Avill give some illustrations. An a[)i)lication Avas made for the 
consolidation of the natural gas companies. Those companies — some 
of them include at present com[)anies outside of the State of New 
York, and it dcAeloj^ed on the hearing before the public-service com- 
mission that to-day 77 per cent of the natural gas that comes into New 
York State and is distributed throughout liiiffalo and different cities 
conu'S from the State of Pennsylvania. AVhat is the situation? Just 
as has been mentioned by some of the members of your conraiittee, 
the public service conuui.ssiou's power stops at the State line. Tn 
other words, it was brought out, and the commission agreed with me 
on that proposition, in the argument of the matter, that if the con- 
solidation went througli. and if tlie New Yorlc State companies Avere 



PRESERVATION OF NIAGARA FALLS. 231 

c'oiisolidateil and thev took gas from a Pennsj'lvania corporation, all 
control was lost to the public service commission of the State of New 
York over these Penns^-lvania corporations, except where the}' supply 
gas in the State of New York thev could regulate the business in the 
State of New York. 

Another illusti-ation : We have an investigation on at the present 
time in the city of Buffalo with regard to rates for electricity'. I 
have made this discovery — and if I am not correct, T will be glad to 
be corrected — that is, that under a pul)lic service commission law 
of the State of New York a complaint can only be made by the 
mayor of the city or by 100 citizens to the commission against the 
company that is distributing, with whom the consumers of the 
city do bsiness. Now, the generating company at the Falls trans- 
mits that power to the city line, and the distributing company takes 
it at the citj^ line at a cost of about $25 a horsepower and distributes 
it. When I am getting this investigation ready, I find that I am 
up against a stone wall, and that is that we can not investigate that. 

The CiiAiR:\rAX. Do you think the public service commission of 
the second district of the State of New York has not sufficient 
authority? 

Mr. Ha^imond. Absolutel3^ That also refers to the first district, 
I say there is no provision that I can find in the law of New York 
which gives either one of those commissions, upon complaint made, 
a right to investigate. That brings me to this proposition. There 
is a clause in the law that does permit the public service couunission, 
on its own complaint, to investigate. So that, although the mayor 
of the city or 100 citizens can not make a complaint against this com- 
pany generating power, the public service commission can. AVhat 
do I find that situation to be? In the gas investigation Avhich T 
Avent through, and in the natural gas consolidation upon which I 
appeared, we found that the public service commission of the sec- 
ond district states this to be their position, that the public service 
commission can not, although it may have the power undei- the 
public service commission law to investigate on its own motion, that 
it can not do it, for these reasons: First, because they have more 
work than they can possibly take care of with the complaints made. 
Second, they have not funds to do it with, although the Legislature 
of the State of New York has been very generous and has given 
them a great mam' thousands of dollars, yet it is a practical impos,si- 
bility for them to hire experts and engage men to make such inves- 
tigations, and it can not be done. That is the statement of the 
chairman of the commission. 

Mr. DiFENDERFER. Did he not write to a body of men — T think 
135 — who petitioned him that it would be impossible to do anything 
during the year 1912? 

Mr. Hammond. He did: yes, sir. That is why T said T would l)e 
glad if the board of aldermen would direct me to come down here 
and tell you that we think it is generally understood 

The Chairman. Can not the Legislature of the State of New 
York remedy the matter? 

Mr. Hammond. They can remedy some, perhaps, but they can not 
remedv the situation T ran up against in the natural-eras case. 

The Chairman. Whv? 



232 PRESEKVATlu.X Ol- ^;iAiiAKA ±ALLS, 

Mr. Hammond. Because New York State has not the power to ^o 
beyond its State line. That brinfjs me back to the proposition as to 
why we say, if it is possible to do it, the ])e()ple of the city of Buffalo 
say to this committee, if we can possibly get any rights and have 
anj' power, let us have it. 

Mr. Garner. If Congress should provide for the importation of 
this power from Canada and should also provide that when the 
powder is imported it would turn it over to the laAvs of the State of 
New York to be controlled, Avonld that answer the purpose? 

^Ir. Ham?.iom). Xo. sir. 

Mv. Garxer. If you had a law authorizing you to control the com- 
panies from Pennsylvania, for instance, investigate the companies 
from Pennsylvania when they come into the State of Xew York, 
would that not be sufficient? 

Mr. HA?.nroND. Has the State of Xew York that power? 

Mr. Garner. If it could be given to you. This is a power that can 
be given to you. 

The Chairaian. Do you mean to contend, as a legal proposition, 
that when that power comes into the State of Xew York, the State 
of Xew York, through some of its agencies, has not the right to regu- 
late it? 

^Ii'. Hammond. I said expressly- in my statement, that so far as 
the power and the gas coming into the State of Xew York are con- 
cerned, the public service commission has the right to control what- 
evt-r is brought in. but their power stops at the State line, so far as 
the Pennsyhania corporation is concerned. 

(iien. Greene. I Avould like to ask what power the Xational Gov- 
eriiment can give to the public service connuission of the State of Xew 
York that the Legislature of the State of Xew York can iu)t give. 

Mr. Hammond. I do not say it can give any. I do say that the 
X'ational Government has powers that the State of Xew York has 
not got. 

(xen. (iREENE. Over the transmission of gas and electricity? 

Mr. Ha^mmond. Yes, sir; absolutely. 

]Mr. Cline. Define those powers, if you please. 

Mr. Levy. AVhat is your position here, in favor 

ilr. Hamafond. My position is to give this committee, at the re- 
quest of Congressman Smith. Avhat lig-ht I have as to what the people 
of Buffalo want, and we Avant all the power that can be had, all the 
water that can be diverted under this treaty to-da}'. 

Ml-. Levy. Then you are weakening your proposition when you 
say the State of Xew York has no authority. I thought your argu- 
ment was entirely for the benefit of Xew York It seems to me you 
Aveaken your ))roposition wlien you say the public service commission 
has no power. 

Mr. Haaimond. I can not iiel)) Avhether I Aveaken my position or 
not. I have given you the facts. 

The Chairman. What the jx'ople of the city of Buffalo Avant is 
chea]:) gas and cheap poAver. 

Mr. Hammond. And to have the companies that supply it get a 
reasonai)le and fail- return on ilieir investment, and to be properly 
resulated. 



PRESERVATION OF NIAGARA FALLS. 2o3 

'I'he CiiAiiniAN. Is not the public seinice conmnssion organized for 
that Acry purpose? Your contention is that the public service com- 
mission is not doing its dutv ? 

Mr. Hammond. No, sir: I do not say that at all. T say the public 
service commission is very efficient. I think it is doing its duty as 
far as it can. but it has human limitations. 

Mr. Flood. And constitutional ones, also. 

Mr. Hammond. Yes, sir. 

Mr. Flood. You say the commission is limited by the character of 
these companies? 

Mr. Hammond. I am against that proposition. Suppose some of 
this power is taken from the Canadian company. What power has 
the public service commission of the State of New York got to go 
into the books of the Canadian compan}'^? 

Mr. Flood. So that you think the regulation and control ought to 
be vested in the National Gcn^ernment ? 

Mr. Hammond. Absolutely. 

Mr. Garner. What power has the National Government-to go into 
Canada any more than the State of New York ? 

Mr. Hammond. My answ^er to that proposition is that, as I said 
in the beginning, I liave not studied these questions as the Attorney 
General has. but I do want to call the attention of the committee to 
the fact that we need it, and we want it if we can get it. 

Mr. Legare. Want wdiat? 

Mr. Hammond. We want the Federal Government control over 
these companies, so that w^e can investigate, and have an investiga- 
tion, and not be stopped at some place because the public service 
commission can not go on and do certain things. 

Mr. Legare. Y^ou mean the companies that transmit the power to 
the United States? 

Mr. Hammond. Yes. One of the members spoke about Michigan. 
Suppose the city of Detroit transmitted their poAver down to Buf- 
falo. I can not use any better illustration than that. What power 
has the public service commission of the State of New York got to 
inquire about that company? It could not begin to find out any- 
thing about that. If we had Federal control, that would step in and 
take the place w^iere we can not cover it by the public service com- 
mission of New" Y^ork. 

Mr. Garner. But Congress might pass some kind of law^ giving a 
commission, a national commission, the right to regulate interstate 
commerce in gas and electricity, but I can not see where w'e can 
reach the Province of Ontario. That is all we have got to deal 
with in this instance. We are now talking about the importation of 
powder from Canada, and we Avould not have jurisdiction of a propo- 
sition to create a commission to regulate prices — to regulate prices 
of interstate commerce. 

Mr. Hammond. My answer to that is. that they have in Canada, 
they have the hydroelectric commission. You have probably heard 
of it. It was my pleasure last week to go through a part of the 
power plant and substation of that commission. If we can not get 
satisfactory rates from these power companies, if it is deemed feasible 
to go into the proposition that the Canadian Government has with 
that commission, and we want to take in Cleveland and Detroit, and 



234 PRESERVATION OF NIAGARA FALLS. 

have that ariangement. how are we going to do it without some 
Federal legislation? 

I am here to give you what our experiences have been and to tell 
you what our wants are. If you can figure it out, well and good ; if 
it can not be done, we have to be satisfied. We do want, in Buffalo, 
the right and control that can be exercised under the interstate com- 
merce clause, or any clause, so that when we endeavor to find out 
what is a reasonable price for electric power, we will not be stopped 
by the State line. 

Mr. Flood. How many companies furnish power in Buffalo? 

Mr. Hammond. Two companies, Buffalo General Electric Co., that 
furnishes lighting, and the Cataract Co. AVe claim that they are 
absolutely one and the same company, and I certainly am going to 
try to prove that before I get through with this investigation. 

Mv. Flood. In other' words, they ha.ve two companies, where one 
ought to be doing the work. 

The Chairman. You believe there is a commimity of interests? 

Mr. Hammond. Yes. 

The CiL\iRMAN. Xo competition between them? 

Mr. Ham.mond. No competition between them. 

The Chairman. Both Xew York companies? 

Mr. Ha:mmond. Both Xew York companies? 

The Chairman. Can not the public service commission remedy the 
matter? 

Mr. Hammond. Xo, sir. The answer goes right back again to this 
proposition. They get their power from a generating company at 
the Falls, and the public service commission — we have no power 
under the public service commissioners' law to file a complaint 
against that company. 

Mr. TowNSEND. Your complaint is against the company that sup- 
plies power to the consumer ? 

Mr. Ha.^imond. Yes, sir. 

Mr. ToAVNSEND. AYliat is to interfere with your approaching an 
investigation of that matter, ascertaining all the facts, whether the 
rates are excessive or not, whether the service is adequate, and then 
imposing such regulations upon those companies as would be suffi- 
cient? You have no interest in the generating company? 

Mr. Hammond. Have Ave not? 

Mr. ToAVNSEND. I think not. 

Mr. Hammond. Here is the Avay it appeals to me, from investiga- 
tions I have made in these other matters. The distributing com- 
panies Avill come in and say we have a contract with the generating 
and transmitting company, or the transmitting company to pa}' theiu 
$25 a horsepower. To illustrate, I Avill put it that way. Suppose they 
say they have a contract to get power from a generating and trans- 
mitting company at $25, at the city line. There is nobody else they 
would get their power from, because they are tied up with a contract. 
The public service commission, as I read the law. can only say what 
those companies are entitled to charge in order to make a reasonable 
return on the investment, allowing them their contract price that thev 
get it for from the company who generates it. 

Mr. TowNSEND. I do not think the contract would be controllina' 
at all. 



PKESERXATIOX OF XIACIARA FALLS. 235 

Mr. Hammo>'d. I do not think so. 

Mr. ToAVNSEXD. I do not think it would be even persuasive in the 
presence of testimony in regard to the price charged for power on 
the Canadian side by the transunttino; company. 

Mr. Ham:,i()>d. But that price, $9.40, is not transmitted to the 
city line? 

Mr. To^^•^\s^:^l). It is the same character of power that is trans- 
mitted. 

Mr. Ham:moni). How are yon going to supply that intervening 
lapse? You can not take the price at the Falls and say it is only 
worth that price at Buffalo. We can not go into the cost of trans- 
mission. That is the answer. Under the public service commission 
law we have no right to hie a complaint against that company, and 
the public service commission is the only one to do it, and they say 
they can not do it. 

JNIr. Tt)AV>«SEND. Mr. Hammond, you said a moment ago in answer 
to a question that there is an absohite monopoly? 

Mr. Hammond. That is what we claim. 

Mr. ToAVNSEND. Are there not laws that can give you power out- 
side the laws of the public service commission? 

Mr. Hammond. Yes: I might start in. but I would never see the 
finish of it. 

Mr. Cline. It is not a defect in your methods of procedure, if 
that is true? 

Mr. Hammond. Suppose I can not prove there is a monopoly? 
That does not remedy the situation. 

Mr. Toavnsend. I did not have the advantage of hearing the first 
part of your presentation. I did hear you say, however, that there 
was a foreign company that transmits power to the city line and then 
turns it over to a distributing company. Am I right ? 

Mr. Hammond. Yes. sir. Let me correct that. It is not a foreign 
company. They generate — it is a Xew York State corporation, a 
corporation of the State of New York. 

Mr. DiFENDERFER. They generate it and transmit it to the city 
line? What is the name of that company? 

Mr. Hammond. The Niagara Falls PoAver Co. 

Mr. Toavnsend. The public service commissioners can iuA'estigate, 
then, absolutely the distributing company in Buffalo? 

Mr. Ham^niond. Yes. sir. 

Mr. Toavnsend. They can also, so far as the transmitting appa- 
ratus is Avithin the territorv of the State of Ncav York, iuA^estigate 
that? 

Mr. Hammond. That is Avhere I differ AN'ith you. 

Mr. Toavnsend. It is Avithin the State of New York. 

Mr. Hammond. I understand, but how are you going to get that 
corporation before the public service commission? 

Mr. Toavnsend. That is a corporation that takes at the boundary 
line and transmits it to the city line? 

Mr. HA:>rMOND. A corporation from the Falls to the city line. 

Mr. Foster. Congress can not help you in that. 

Mr. Hammond. I am not sure about that. 

Mr. Garner. Let us suppose a case. Suppose that the public 
service commission in NeAv York had plenty of time and plenty of 



236 PRESERVATION OF NIAGARA FALLS. 

clerical assistance, and eniplovecl experts iiiider them, could they not 
go into the question of the cost of the power company's transmission 
from Niagara Falls to the city of ButFalo and determine whether or 
jiot it was reasonable, and upon its OAvn complaint? 

Mr. Ham MONO. They could. 

Mr. Gakner. Then how do you expect Congress to assist you in 
doin<i' a thing" that you say can not l)e done on account of inefficient 
machinery in your own State? 

Mr. Ha:mmond. The answer to that is that I have thought that 
propositioji out : and you ought, it seems to me. regulate the matter 
of the transmission of power between States, just as in the case you 
mentioned — in the case of Detroit. 

Mr. Garnkr. That is an entirely dili'erent (juestion. 

Mr. IIammonu. Why is it different ( 

Mr. Garner. Just a moment. We have under consideration here 
a question of the importation of power from a foreign (Jovermnent. 

Mr. Hammond. Yes. 

Mr. Garner. The question of regulating rates and controlling 
power between the States is entirely another question. 

Mr. Hammond. I understood that you had that in this bill. 

Mr. (lARNER. I do not know of any provision here creating a com- 
mission to control the jiower in interstate commerce, either electricity 
or gas power. 

Mr. Ha^imond. I understood there was something of that kind in 
this bill. If I am wrong on that, all right. I understood the Attor- 
nev (ieneral to sa"\' that it can be done. I sav it should be done bv 
a bill. 

Mr. Legare. Mr. Hammond, are not these domestic cor]:)orations 
doing business in the State of New York ? 

Mr. Hamjiond. AVhat do you mean by "these"? 

Mr. Legare. These generating companies. 

Mr. Hammond. The distributing companies are. The generating 
companies 

^Nlr. Legare. Then j'ou admit that the peoj^le of New York have a 
right to regulate these domestic companies? 

Mr. Ham:mond, I assume they have. 

Mr. Legare. You will also admit that the State of New York and 
the municipal government has the right to fix these rates? 

Mr. Hammond. To regulate these rates: yes, sir. 

Mr. Legare. W(Mdd you be willing to turn over this authority to 
the Federal Government, the authority and power which the State 
and your numicipal form of government have of fixing these rates, 
and Avould you be willing to turn it over to the Federal Government 
entirely? 

Mr. Hammond. I am not here to speak on that subject. 

Mr. Legare. Yes, you are. 

Mr. Hammond. Just let me answer. 

Mr. LE(iARE. I understand that is what you are asking for. 

Mr. Hammond. I am not here to speak upon that question, because 
the Attorney (jeneral, as I understand, represents the State of New 
York. AVhat I do say is that where wc find the public-service com- 
mission's law of the State of New York ineffective, we do want 
Federal control. 



PRESERVATION OF NIAGARA FALLS. 237 

Mr. Lkgare. You are willing to turn this control over to the 
Federal (Tovernnient entirely ? 

Mr. Hammond. I do not say that. 

Mr. Legare. That is the only way you can do it. 

Mr. HA]\rMOND. I do not agree with you on that. 

Mr. Legare. Is there any complaint against these rates? 

Mr. Hammond. There is. 

Mr. Legare. By whom? 

Mr. Hammond. The city of Buffalo. 

Mr. Legare. In what Avay? 

Mr. Hammond. By complaints filed with the public service com- 
mission of the State of New York. 

Mr. Legare. There have been complaints filed? 

Mr. Ha:mmond. There have been complaints filed, and the answers 
are filed. 

Mr. Legare. I understood that no complaint had been filed. 

Mr. Hammond. I filed the complaint ; it had my name on it. 

Mr. Legare. Wlien was that done? 

Mr. Hammond. The day before the last election. I was not up 
for election. I was electee! two years ago and my time is not out, so 
that the filing of the complaint the day before election had nothing 
to do with the situation at all. I had already served two years; I 
have still two years more to serve. It was not filed before because 
the mayor of the city of Buffalo had the complaint and kept it a 
year and four months. I had drawn it, and he brought it out to 
me the day before election, and he said he wanted it filed. He was 
elected two years ago. 

Mr. Levy. I can not make out yet what you are here for. 

Mr. Flood. He wants some Federal control over the importation 
of power from Canada. 

Mr. Levy. I understood Buffalo sent you here. 

Mr. Hammond. That is right. 

Mr. Levy. Do you indorse the Attorney General's remarks? 

Mr. Hammond. Mr. Levy, you will have to pardon my weakness, 
but I said a while ago that I finally wanted to get to that proposi- 
tion. I will be very glad to take it up now. 

Mr. Levy. Do vou indorse the Attornev General's argument here 
to-day? 

Mr. Hammond. I am not here for the purpose of indorsing 

Mr. Difenderfer. I ^Iq not think this gentleman is here to be 
badgered. 

The Chairman. Proceed with yoiir argument. 
Mr. Hammond. As I have stated, by reason of the situation de- 
veloped in Buffalo: if it can be done we feel that there should be 
some Federal control to regulate the transmission of power between 
the States, and also, if ]:)ossible. to overcome any defects existing in 
the New York State public service commission law. 

Mr. Sharp. In a word, your contention is that whereas the people 
of Buffalo are thoroughly convinced that there is no honest compe- 
tition there, you are at sea as to the best way to compel reasonable 
rates, either under the State or national law? 

Mr. Hammond. That is it exactly. And I filed my complaint with 
the hope of accomplishing that result. The puSlic service com- 

28305—12 16 



238 PRESEKVATIl)^' DF NIAGAHA I'ALLS. 

mission -ay thev cjin not investioate this Iran^initting and generating 
company. They are given that power, but tliey say they can not. 
They say they have not the funds and tiiat they have niore Avork 
than thev can do to take care of cases Avhere com]ilaint^ have ])een 
filed. 

Mr. SiiAKP. One further question. 1 avouUI like to know, for in- 
formation, what reasons you have for believing that the i-ates are 
excessive and that there is no competition. 

Mr. Hammond. As compared Avith statistics we have received from, 
other cities and States the information contained in reports filed with 
the public service commission by the electric companies. 

Mr. Sharp. Do they get the poAver from Avatei' poAver or from 
steam ? 

jNIr. Haaimoxd. They get their poAA-er from Avater poAver. although 
it may be one of the disputed questions 

Mr. Sharp. I mean in other phices? 

Mr. HA:^iMOxn. I understand they get it from tlie Falls and they 
transmit it to the city line. 

Mr. Sharp. Do those other places get it from Avater poAver, Avhich 
is supposed to be much cheaper? 

Mr. Hammond. Yes, sir; like the hydroelectric commission; it gets 
it for $9.40 at the Falls and transmits it at n great deal less than v>liai 
Ave ])ay. 

Mr. DiFENDERFER. In fact, the price is $12, is it not ? 

Mv. HAjr:\roND. My information is that it is $17.45 in Toronto, 
and $18.55 in Hamilton, as against $30 in Buffalo. 

Mr. Sharp. I refer to other places in this country, on this side. 

Mr. Ha^imond. That i^ right ; Ave liaA'e also made im'estigations 
there. 

Mr. Sharp. Is that generated by Avater poAver or steam ? 

Mr. Hammond. I understand Avhere it is generated by steam it is 
supplied at less cost. 

Mr. Sharp. Does part of this cost come largely from the number 
of distributors, there being three different agencies? 

Mr. HA>r:\roND. That is one. 

Mr. Sharp. Is there any Avay of controlling that? 

Mr. HA:\r:\roND. Xo way as to the generating and transmitting com- 
panies. 

Mr. Sharp. HaA'e you any evidence that there is an identity of the 
personnel of the two com]-)anies. either in the board of directors or 
the stockholders? 

Mr. Haacaiond. Yes, nr: Ave haA^e that. 

Mr. Sharp. Do you bcli-ve that is true? 

Mr. Ha:v[:mond. I believe they are all controlled by the same inter- 
ests, and in fact, their representatives say that the officers are the 
same. We are talking about the distributing companies. 

Mr. Sharp. Are they connected Avith the other companies aa-Iio fur- 
nish poAver to them for distribution, reaching to the original com])any 
that takes ]ioAver direct from the Falls? 

^fr. Hamaiond. That is my information. Each of the distributing 
companies in Buffalo is either controlled by the transmitting com- 
pany, or they have a. large amount of stock in the company, so that 
thev have control. 



PRESEKVATION OF NIAGARA FALLS. 239 

Mr. DiFENDERFER. Is it iiot a fact that the president of one com- 
pany is the vice president of another? 

]\ir. Hammond. That is true. 

Mr. Sharp. Just one more question. The other day some reference 
Avas made by one of the speakers Avho I thought was very well quali- 
fied to speak. He said that one of these companies had as one of their 
assets certain political standino- in the State, and he mentioned some 
of the former statesmen who were in touch either with tlie com- 
mission or the companies. Do you think there is anything in that — 
that there is a political asset as well as a property asset ? 

Mr. HAM:NroxD. That I could not say. My iuA^estigations have not 
led me to that. 

^Ir. Sharp. You do not know anything about that? 

Mr. Hammond. T do not know anything about that. 

Mr. DiFENDERFEit. I would Hkc to know what the price of power in 
Burt'alo is as compared with other cities in New York that receive this 
same character of ]5ower. 

Mr. Hammond. Tliese matters of poAver prices are very intricate 
and complicated aii'airs. I find. In a general way I have found that 
Buffalo is pavino- more than Lockport or other places that are near 
Buffalo. 

^Ir. DiFENDERFER. Can you state what it is in Lockport? 

Mr. Hammond. I can not. I have understood that it is lower. 
Gentlemen who are here can irive you those prices absolutely. I do 
not like to say what they are when I am simply giving you my impres- 
sions in a general way. 

What the city of Buffalo wants is also more power granted to the 
State, so that we can have the benefit of having the entire amount of 
Avater that is available and feasible to be diA^erted under this treaty. 
We would like to have absolutely stated in this bill the amount of 
Avater diA'erted and used, and I care not, and the people of Buffalo 
care not. whether our learned Attorney General is correct and that it 
should be done by the bill giving the State the power to regulate and 
control and take care of that matter or whether it be done by the 
Federal Government, if Congress has that poAver. That is a matter 
I haA'e not gone into. But we do say, AvhicheA^er Avay your committee 
here deterniine is proper. Ave do want to have that Avater poAver avail- 
able, so that if the people in the State of New York and the different 
municipalities Avithin and outside the State want to have some grant 
made by the State of Xew York, if it is necessary, in order to put into 
operation a proposition somewhat similar to the hydroelectric com- 
mission of Canada, that that can be done. That comes to the propo- 
sition as to AAdiy I am here. That is one proposition we want. 

Mr. Levy. That is what I want. 

^Ir. DiFENDERFER. You would uot favoF giving this power to these 
two companies that are generating? 

Mr. Haaimond. I assume they should be put under a proper control. 
I Avould not take it aAvay from these companies if they are justly 
and fairly entitled to it, and it can be reasonably exercised by 
power of control over them to see if it was properly used: but I do 
say that any power taken should be controlled by some authority — I 
do not care AA'hether it is the State of Xcav York or the Federal Gov- 
ernment — I believe it should be used most efficiently. In other words, 



240 PRESERVATION OF NIAGARA FALLS. 

"we are coming to the point now where this Avater power is so valuable 
that there should be home control to see that the power that is taken 
Is used efficiently and the best results produced. In other words, not 
to let some company take the power and not have an efficient appa- 
i-atus by which it can get the most with that power and not waste the 
power. We of Buffalo believe it should be properly handled and 
properly regulated bj' the proper authority to see that efficient power 
IS generated and that efficient plants are erected and taken care of to 
use that power. 

Mr. Flood. Is there any complaint that these companies have any 
inefficient plants? 

Mr. Hammond. I have heard that some plants are more efficient 
than others. 

Mr. DiFENDERFER. Xow, the Hydraulic Power Co. is a company 
which is not distributing except in the neighborhood of Niagara? 

Mr. Hammond. I can not tell you the details of that. Gentlemen 
here can give you those facts better than I, and I do not like to give 
you my impressions. 

Mr. DiFENDERFER. AVliat company transmits it to the city line? 

Mr. Hammond. The Niagara Falls Power Co. 

Mr. DiFENDERFER. Then it is taken from that company by a dis- 
tributing company that has an agreement with another comparn' for 
the service ? 

Mr. Hammond. Absolutely. 

Mr. DiFENDERFER. So that there must be three profits paid from 
the time the water is taken to the time when it reaches the consumer? 

Mr. Hammond. Absolutely. 

Mr. DiFENDERFER. I should like to know something about that. 

Mr. Hammond. That is something I can not talk about, but there 
are gentlemen here Avho can give you more facts. One company, the 
Cataract Power & Conduit Co., distributes only power, and they 
then furnish power to the Buffalo General Electric Co., which fur- 
nishes light, so that with that company there are only two profits, 
whereas with the Buffalo General Electric Co. there are three, which 
you mention. 

^Ir. Fix^OD. With reference to this question of efficiency, what is 
the greatest quantity of power produced by any of these companies 
per cubic foot ? 

Mr. Hammond. I can not tell you. I have not the knowledge nor 
the inclination. That is all I have to say. Those three propositions 
are the things I cjime here for, an.d I have presented them as best I 
could, without any preparation. I came down to give you these facts 
and to say to you that, as far as the people of the city of Buffalo are 
concerned, they would like to have those things done, as well as that 
M'ith regard to further regulations, if possible. 

Mr. Levy. Do you know what the cost of street lamps is in Buffalo 
comi)ared with the city of New York? 

Mr. Hammond. I do not. 

Mr. Levy. I woidd like to get some idea of just what benefits these 
companies are to Buffalo. How much do these companies, that may 
be considered as domestic companies, how much do they pay in taxes 
annually to Buffalo? 

Mr. Hammond. I can not tell you that. We have in New York 
State a franchise tax by the State, as the attorney general can ex- 



PRESERVATION OF NIAGARA FALLS. 241 

plain, unci in addition to that we have the general taxation and the 
board of assessors of the miuiicipality. I can send them to the com- 
mittee if _you desire it. I can give you the total amount of taxes 
rhat they pay. I will be very glad to do that. 

Mr. Levy. How much difference is there between the price charged 
for this electric power in Buffalo, per horsepower, and the price 
charged per horsepower generated by steam? 

Mr. Hammond. We have not in Buffalo any company that gener- 
ates power b}- steam and sells it to the public that I know of. In 
other words, we have simply these two companies, the Cataract 
Power & Conduit Co. and the Buffalo General Electric Co. 

Mr. DiFEXDERFER. They do substantially all of the business? 

Mr. Hammond. xVbsolutely ; it is a monopoly. 

Mr. DiFENDERFER. There is no competition whatever? 

Mr. Ham:'.iond. We do have some private plants for the purpose 
of lighting public buildings like the city hall. But there are only 
a few of those in Buffalo, and outside of that the only way the city 
of Buffalo can get electric poAver at the present time is from those 
companies. 

Mr. DiFENDERFER. AAliat does it cost per horsepower? 

Mr. Ham:mond. $30 j^er horsepower for purposes of power. 

Mr. DiFENDERFER. AVliat is the relative difference between the two, 
between the power and the lighting? 

Mr. Ha3imond. The lighting runs from i to 9 cents a kilowatt 
hour. Nine is the house lighting. 

^Ir. DiFENDERFER. I clo uot sce liow you can institute any com- 
parison between those two. 

yir. Haj[:mond. We can make a comparison in the horsepower. 

Mr. CoHN. Mr. Hammond, you have stated here several times 
that this is a monopoly in the city of Buffalo. 

Mr. Hammond. That is my claim. 

Mr. CoHN. Do you object to that, or do the people of Buffalo 
object to it as a monopoly ? 

Mr. Hammond. My position with regard to that, and here I can 
not speak for the city as a whole, I can speak from my experience. 
For instance, in the gas investigation — that is, I believe if we had 
the proper power placed somewhere to regulate and control and see 
that proper service is given, that a monopoly is best for the city. 
But without that proper control to regulate, to control these com- 
panies, then it is bad. 

^fr. CoHN. Is it not a fact that the company which I represent 
a]iplied to the city of Buffalo to distribute pcwer in the city, and 
its application was refused? 

Mr. Hammond. That is so. That was some years ago. 

Mr. CoHN. Is it not a fact also that the Ontario Power Co. have 
tried to come into the city of Buffalo to distribute power, but that 
the franchise which was offered was of such a character 

Mr. Ham:\iond. I do not know. 

Mr. DiFENDERFER. Why do you not ask him under what con 
ditions? 

Mr. CoHN. There were no conditions 

Mr. DiFENDERFER. AVhv was the rate refused? 
\Mr. Hammond. They did not want competition. 



242 PRESERVATION OF NIAGARA FALLS. 

Mr. DiFENDKKFEi!. Wlio coiitrolled the refusal? 

]\Ir. Hamjiond. The public authorities of the city of Buffalo. 

Mr. Legare. Have you the rioht under your charter to manufac- 
ture your own electricity? 

Mr. Hammond. I think we would have to have an amendment to 
the charter, to have an amendment by the lenrislature. 

Mr. Legare. Are you sure about that ? 

^Mr. Hammond. That is my impression : that we would have to do 
that to have that risfht. 

Mr. DiFENDERFER. lu orrantin*r this original rioht, did you i^ive 
this power companv absolute right to use the streets without compe- 
tition? 

Mr. Ha:m:moxd. Oh. no; not without competition at all: absolutely 
not. 

Mr. Browne. Comino- back to the question suggested by Congress- 
man Levy, I understand that Avhen you speak of what the city of 
Buffalo wants, vou speak onlv of quantity? 

Mr. Hammond. Of what? ' 

]Mr. Browne. Of quantity. What the city of Buffalo wants is that 
the full amount of 20,000 feet allowed by the treaty shall be allowed 
to be diverted, so that it can get the benefit of the 4,400 feet ? The 
city of Buffalo wants more power? 

Mr. Hammond. Yes, sir. 

^fr. Browne. Is it not trn.e that they also want more power by im- 
portation — that they want more power, by importation— that they 
want more powder, wherever it comes from ? 

Mr. HAisrivroND. And Ave need it. 

Mr. Browne. And there is a demand for it? 

Mr. Hammond. Absolutely. And it should be properly regulated 
and controlled. That is why I come back to the Federal proposition. 

The Chairman. Is that all you desire to say? 

Mr. Flood. You said in your opening remark you were going to 
say something about a division of territory between these companies. 

Mr. HA:\r:\iOND. I simply said to you that from the facts I have been 
able to ascertain, what I expect to ]^rove in the investigation is that 
there is that arrangement. 

Mr. Flood. You did not expect to prove it here? 

Mr. HA^rMOND. I am satisfied there is a division of territory be- 
tween these companies. 

Mr. Flood. Could you state Avhat territory the res])ective com- 
panies have? 

^Iv. Hammond. T can not state that at the present time, and T 
would not Avant to state it, if I might be permitted not to. 

The Chairman. Is there any other person here aa-Iio desires to be 
heard, from the State of New York? 

We will now hear from ]\[r. EdAvard Haggeman Hall, representing 
the American Scenic and Historical Asociation. 



PRESERVATION OF NIAGARA FALLS. 243 

STATEMENT OF MR. EDWARD HAGGEMAN HALL, OF THE 
AMERICAN SCENIC AND HISTORICAL ASSOCIATION, OF NEW 
YORK, N. Y. 

Mr. Hall. 'Sir. Chairman, I represent the American Scenic and 
Historical Association. 

I c-ame down here by vote of the trustees of our society at their 
regular monthly meeting last evening, upon only two hours' notice. 

Our interest is in the preservation of the scenery of Niagara Falls. 
Two of our trustees best qualified to speak on that subject were pre- 
vented from coming, one by illness, and another by an engagement 
in the courts. 

It seems to me proper that one should speak with specific facts 
with regard to these nuitters. I do not feel qualified upon this short 
notice, so to speak, and I do not think it is just, either to our society 
or to you or to myself, to attempt to present such an argument on 
such short notice, without preparation. 

I feel, however, that the principal legal question which has come 
up here is one which is worthy of your consideration, and I might 
say we called it to the attention of the senior Senator from New 
York something over a year ago. and called his attention to the 
fact that the question which the Attorney General has brought up 
here to-day is liable to come up. I want to say for our society that, 
in case Congress shoidd turn that power over to the State, we have 
as much confidence that our State authorities will be amenable to the 
sentiment in regard to the preservation of the Falls as you gentle- 
men here. 

Mr. Garner. Who Avas the senior Senator from New York, whose 
attention you called to it? 

Mr. Hall. Senator Root. 

Mr. Garner. You do not know whether he was interested in any 
of these companies, do you? 

]S[r. Hall. I do not. 

Mr. DiFENDERFER. AVould youT association be satisfied to turn this 
matter over to the conservation commission of the State ? 

Mr. Hall. I think so, sir. They have not passed upon that ques- 
tion because I do not think they knew about it. 

]Mr. DiFENDERii^R. You would be willing to have them take juris- 
diction in this matter? 

Mr. Hall. If they could. 

The CirAiR:MAN. The committee will now hear from Mr. J. Horace 
ISIcFarland. president of the American Civic Association. 

STATEMENT OF MR. J. HORACE McFARLAND, PRESIDENT, AMERI- 
CAN CIVIC ASSOCIATION. 

]\rr. ISIcFarland. Mr. Chairman, the legislation before you relates 
to the enforcement of Article V of the treaty between the United 
States and Great Britain, proclaimed May l-S, 1910, the .section 
cited being that Avhich limits the diversion of the water of the 
Niagara Kiver above the Falls of Niagara for power purposes. 

In order that the true intent of the article of the treaty mentioned 
may be discovered, it is proper to consider the circumstances preced- 
ing its discussion, signature, and ratification. 



244 PRESERVATION OF X1A(JAKA FALLS. 

On October 0. 1905, the American Civic Association then in session 
in Cleveland, telegraphed to the President of the United States and 
to the Governor General of Canada a statement strongly urging 
international action for the preservation of Niagara Falls, and thns 
raising for the the first time, upon the basis of the ordinance of 1787 
erecting the Northwestern Territory, the question of international 
ownership of the great cataract. This resolution was by the Presi- 
dent of the United States referred to Attorney General AVilliam H. 
Moody, who replied in the following Avords : 

As to the ground for Federal intervention, so far as proposed, I thiiilc there 
can be no fair donbt. The character of Niajrara Falls as one of the jiroatest 
natural wonders, its situation in a boundary river on the frontier <>f a foreign 
country, its undoubted historical reh'.tion as a natural possession and common 
heritage— all these elements in the case would fully .iustify you in jiroposing 
tlirough the ordinary diplomatic channels the consideration of this subject by 
the two (iovernnients immediately concerned. 

The same point of view in reference to the paramount jurisdiction 
of the United States and the Government of Great Britain was 
held by former Attorney General P. C. Knox, now Secretary of 
States, and also stated by formery Attorney General John W. 
Griffffs. in the following words: 

Whatever .iurisdiction the State of New Y<irk has over the waters of the 
river and their use is sub.iect and subordinate to the power of the National 
Government in two respects: First, with respect to navigation, as to which the 
laws of Congress are sui)reme. Second, as to the sul).iect of boundary l>etween 
this Nation and Canada, in respect to which the United States and Great 
Britain have the right by treaty stipulation to impose such conditions and 
regulations upon the use of the river and its waters as they deem mutually 
proper. A treaty duly negotiated between these two powei's and ratitied by the 
Senate of the T'nited States would be the supreme law of the land, and if in 
such treaty it were provided that no such use of the waters as is coutem]ilate<T 
should be hereafter made, and this regulation were «>nforced by act of Congress, 
the treaty .-nid the legislation wonld be valid, the rights of the State of New 
York and all private riparian owners to the contrary notwithstanding. * * * 
It is in my .judgment necessary, in order that full and complete control of 
this subject may be obtained by the two i)0wers. that an international agree- 
ment in the form of a treaty sbould be made. Such a treaty would involve no 
infraction of or tresi)ass upon the rigb.ts of tlie State of New York, because its 
rights as above stated are sul>ordiiiate to the superior jurisdiction of the 
Nation with respect to the stream as a navigable river and as an international 
boundary. 

Deeming it proper so to do. President did institute diplomatic 
corres])()nden(e Avith the Government of (^ireat Britain looking to- 
ward the negotiation of a treaty for the purpose of preserving 
Niagara Falls. Meantime he thought it wise to call the attcMition 
of Congress, upon its assembling in December. 1905, to tiie necessity 
for intervening legislation on the part of the United States, and in 
several interviews with officers of the American Civic Association the 
President made plain his earnest de^sire that legislation be enacted 
looking toward a cessation of the proceeding spoliation of the Falls. 

The ]ioint is here nuule that all this effort in re>pect to an inter- 
national treaty to be negotiated arose from an insistent desire on the 
part of the President and the people of the United States to jireserve 
the Falls of Niagara in their scenic majesty. 

The further point is made that, whereas, in consequence of a re.so- 
lution of the Legislature of the State of New York, passed March 17, 
1904, the then Secretary of State, Hon. John Hay, had begun nego- 



J 



PliESEKVATION OF NIAGARA FALLS. 245 

tiatioiis with tlie British ambassador for the preservation of Niagara 
Falls, active work in that direction was not instituted until after, by 
the action first mentioned, in October. 1005, the American Civic 
Association drew the attention of the President, Congress, and the 
country generally to the dangers then and since existing and to the 
international ownership of the Falls. 

Although the State of New York did, bj' its action in 1904. thus 
call the attention of the Federal Government to the necessity for the 
preservation of Niagara, that State had exercised no efficient control 
over the Falls looking toAvard their preservation under its then j)re- 
sunied exclusive State control. Thus that legislature had granted to 
the Niagara F:dls Hydraulic Power & Manufacturing Co. and to the 
Niagara Falls Power Co. the right to use a total of :2G,T00 cubic feet 
per second and had likewise granted six named corporations, between 
188G and 1894, additional charters permitting the taking of water 
from Niagara Eiver for the production of power, some of them 
practically Avithout limit. 

There had been by the State of New York no attempt whatever to 
restrict the use of the water of the Niagara River for the production 
of power, as may be judged by the total amount involved in the right 
actually granted and alive to-day, so far as that State is concerned. 

While also the State of New York had, through its creation in 
1885 of the State reservation at Niagara, admirably restored the sur- 
roundings to the Falls, against the opposition of the beneficiaries of 
their local desecration and the city of Niagara Falls, it had not and 
has not since imdertaken anv protection whatever of the gorge below 
the State reservation, or of such extension of the State reservation as 
would make it compare in extent with the Queen Victoria Niagara 
Falls Park erected by the Province of Ontario on the Canadian side 
of the Falls. 

That is, the State of New York has not, when it had unchecked con- 
trol of the Falls, in any way attempted to restrain their diversion for 
the purpose of power production, or to take care of the scenerj^ inci- 
dent to this great natural spectacle, except in respect of the admirable 
reservation above mentioned. 

The point is therefore made and enforced that there is no warrant 
for the contention that has been made before this committee that the 
State of New York has any right whatever in connection with the 
distribution or assignment of water permitted to be diverted under 
the treaty of Canada. 

Your committee has heard numerously, from various corporations, 
and some individuals.. upon the effect of diversions that have already 
proceeded, and upon others it is desired to authorize, directly or 
indirectly. Attention is called strongly to the fact that every one 
of these arguments relates to the taking of more water from the 
Falls of Niagara. Not one of those corporations here and now 
represented is seeking to give up any claim it may have to the use 
of the water of the Niagara River. Any yielding, of whatever 
nature, to any of the claims here made means, then, a further deple- 
tion of the cataract. 

All statements made should be considered in this light only, except 
as made by those few who are here to represent the great American 
peo])le, the rights of whom in the ownership of this natural wonder 
I am confident your committee will safeguard. 



246 PRESEKVATIOX OF NIAGARA FALLS. 

Now, it iy apparent that, first, the State of New York has shown 
almost no concern as to the integiity of the Falls of Niagara, and. 
second, that the institution of the diplomatic negotiations, which 
resulted in the treaty j^roclaimed May 18, 1910, was. so far as the pur- 
l^ose of this present discussion is concerned, entirely with a view to 
the jjreservation and not the extended use of the Falls of Niagara. 
According to a letter wi'itten me by Hon. Flihu Root. Avhen he was 
Secretary of State, under date of October '20. 1UU(). "the negotia- 
tions between the United States and Great Britain for the preserva- 
tion of Niagara Falls were begun between Mr. Hay and the British 
Ambassador." In a further letter, written to me by the same 
gentleman, October 24. 1900. Mr. Root says: 

There is serious tliiiif^er tliat we can make no treaty for tlie preservation of 
Aiagara P'alls. 

There was no other thought than this in the minds of those who 
have furthered the institution of diplomatic negotiations, and the 
net. approved June 29, 190G, in section 4, specifically requests the 
President of the Ignited States •' to open negotiations with the Gov- 
ernment of (ireat Britain for the purpose of effectually providing by 
suitable treaty with said Government for such regulations and control 
of the Avater of Niagara River and its tributaries as will preserve the 
scenic grandeur of Niagara Falls and of the rapids of said river." 

No further argiunent is needed, I infer, to prove that the only 
purpose of the United States in seeking the treaty proclaimed May 
13. 1910. in so far as Article V is concerned, was to preserve Niagara 
Falls. That there is no such statement in Article V of the treaty 
does not change the intent of the people of the whole country whose 
insistence brought about the action which resulted in the negotiation 
of the treaty. 

AVi)en the details of the treaty were first made known, and pre- 
vious to its ratification, the American Civic Association "was impelled 
to make objection, first, to the absence of any specific mention of the 
real object of that })art of the treaty outlined in Article V; second, 
to the large authorized diversion; and, third, to the absence of any 
mention or supervision of the importation of electric power from 
Canada. These objections were made known to Secretary of State 
Root, and it is betraying no confidence to ^ny that he urged me with 
all vigor and force not to interpose objections to the confirmation of 
the treaty by the Senate. Avhich objection at that time could have 
been made conclusively effective, alleging that he had done his 
utmost with the Government of Great Britain, and specifically stat- 
ing that the inclusions of Article V Avere permissiA'e and not obliga- 
tory. Secretary Root understood them fully that there would be 
strong opposition in the United States to the extension by more than 
25 per cent of the amount of diversion which had already been 
foin)(l to injure the Falls, and more opposition to the mn-estricted 
importation of power from Canada. 

It was upon Secretary Root's presentation of the i)ermissive fea- 
tures of Article V that I agreed not to interpose any obstacle oil 
behalf of the American Civic Association to the ratification of the 
treaty by the Senate. The language of the treaty is plain when it 
says : 



PRESEEVATION OF NIAGAEA FALLS. 247 

The United States may authorize and permit the diversion withiu the State 
of New ,Yoiiv of the waters of said river * * * for power purposes, uot 
exceeding in the aggregate a daily diversion at the rate of 20,000 cubic feet 
of water per second. 

The same permissive phrasing is attached to the Canadian section. 
It wonld be stultifying to say that the deliberate conclusion in 
Article V of the words '* may authorize " and " not exceeding "" Avas 
equivalent in its inclusion to the Avords in the preceding paragraph, 
which said "no diversion of the waters of the Niagara River above 
the Falls from the natural course and stream thereof shall be per- 
mitted." 

It is proper, though incidental, to hear remarks that the third 
jjaragraph of Article V authorizes the United States to permit the 
diversion of a certain amount of water, and not the State of NeAv 
York, whereas the fourth paragraph authorizes a certain diversion 
'*■ by the Dominion of Canada or the Province of Ontario." 

The treaty thus i^lainly settles the question of jurisdiction as 
betAveen the Province of Ontario on the one side and the Federal 
Government only on the other side. 

As bearing upon the A^iew had of this matter by the British am- 
bassador himself, Hon. James Bryce. I may say that at an extended 
interview had with him in the spring of 1906 he most emphatically 
joined in the desire of the American CIahc Association for the full 
preservation of the Falls of Xiagara. At his request I sent him to 
Ottawa full details as to permits, diA^rsions. power Avorks. and the 
like, not previously in his possession. It AA-as characteristic of Mr. 
Bryce's public spirit to have him say to me : 

If I were not British ambassador and could make S|x^eches al>out this matter 
for two weeks in Canada, I know the Falls could be preserved. 

The points are here made that, first. Article V of the treaty under 
discussion Avas, so far as the United States of America is concerned, 
formed solely and only for the preserA^ation of Xiagara Falls, and not 
for the extension of the use of Xiagara Falls in the production or 
imj^ortation of additional power; second, that the preserA'atiA'e idea 
was fully in "the minds of all those concerr^ed on the part of the 
United States, and at least of the British ambassador himself on the 
part of (ireat Britain, at the time of the negotiation, the signature, 
and the ratification of the treaty. There aaouUI have been no such 
article in the treaty had not the American Civic Association and 
otlier organizations of like aims voiced the AAill of the people for 
the preservation of Xiagara Falls. 

I need not present to your connnittee details Avith Avhich you are 
already completely familiar in the extended and admirable dis- 
cussion as to the preservation of Xiagara Falls contained in Senate 
Document 105, as transmitted in a message fronj the President of the 
United States, inider date of August 21, 1011. The facts there pre- 
sented, after thre^ years of engineering work of a uoatI, delicate, 
and intricate character, speak for themseh'es. Gen. Marshall says: 

The existing diversions have already seriously interfered with and injured 
the scenic grandeur of Niagara Falls, at the Horseshoe, which injury and inter- 
ference will be emphasized by the effects of lower stages fewer to recur on I^ake 
Erie and the upper lakes, due to natural causes. 

Referring to the established reduction in the depths of Lake Erie, 
due to the present authorized diA-ersion for poAver for production 



248 PBESEEVATIOX CF ^flAGARA FALL^?. 

at Niagara Falls, and contemptuously disregarded various plea.-, made 
to you by those who are interested in taking more water from Ni- 
agara, the -tatement is made by the Chief of Engineers that " the 
aggregate loss per season for the entire fleet using Lake Erie pons as 
terminals becomes a very large amount." which is an additional reason 
for restraining any fnrtlier diversion. There can be no doubt a> to 
the will of the people of the United States, which Congress is bound 
to respect, and which has l^een emphatically manifested as desiring 
the efficient preservation of Niagara Falls further unharmed. In 
fact. I Ijelieve that if a referendum was now made to the voters of 
the United .States there would be an overwhelming majority for the 
complete restoration of Niagara Falls to their pristine majesty, re- 
gardles- of the private interests, thus dispossessed. 

The people are cognizant of the fact that in the Falls of Niagara — 
a world spectacle of increasing value — they have not only a va^t 
and beneficient financial resource in its attraction of a million visitors 
a 3'ear, with an admitted travel expenditure of $25,000,000 annually, 
which at 5 per cent would give Niagara Falls a capitalized value of 
5^500.000.000. but they have also the knowledge that if the Falls are 
preserved and developed into electricity for distribution entirely 
to private advantage, there may continue a wide combination of 
utilization and conservation which, should the last final needs of the 
Nation require, might in the then-improved methods of producing 
and distributing electricity, inure to the enormous advantage of 
many millions of people. 

I desire to emphasize strongly the fact that, as based upon the 
findings of the Chief of Engineers, already referred to, any diversion 
of water for power purposes from the upper pool, whether that diver- 
sion Ije made in the United States or in the Province of Ontario, 
equally interferes with the scenic integrity of Niagara Falls. Thiis 
the diversions of the Ontario Power Co.. the Niagara Falls Hydrardic 
Power & Manufacturing Co.. the Niagara Falls Power Co.. all draw 
equally and indiscriminately from this upper pool, and equally and 
indiscriminately destroy the scenic integrity of the cataract. 

It is true the United States can not control such diversion as is 
made within the Province of Ontario, in so far as the resulting 
power is used within the Province. It is equally true that the use 
of electric power in the United States, whether it is developed on 
the Canadian side or on the American side, efjually and eificiently 
interferes with the integrity' of the Fall-. It woidd Ite unworthy of 
ci great nation, and an evasion which the people of the United .States 
would properly reseift. if the view should be taken that, while there 
was maintained sharp restrictions on the diversion of water in the 
United States for the production of power in order to preserve the 
scenic integrity of the Falls, there need be no restriction of the 
importation of that power produced across the international border 
from water drawn from and equally depleting* exactly the same 
pool. 

This point of view is the more efficiently presented in the a<lniir- 
able document already mentioned, in connection with its insistence 
upon the damage that has already occurred in the Horseshoe Falls, 
which I need not point out to your committee, is as much an Ameri- 
can fall as it is a ('anadian fall. 



PEESEEVATIOX OF NIAGARA FALLS. 249 

In the document above referred to. a novel and most important 
view of the situation is presented on page 5G in respect to the way 
in which diversion not onl_y tends to bring about an "• unwatered crest 
line or bare spots in the rtipids." but actually decreases the height of 
the fall bv abstracting water from the crest line and restoring it in 
the gorge below. 

It is also notably in point to call your attention to the statement on 
page 20 of the report above mentioned that the mean or average flow 
of the Niagara River is 210,000 cubic feet per second. This is 12.400 
cubic feet per second less than the average flow as reported in para- 
graph 3 of the repoit of the American members of the International 
Waterways Commission to the Secretary of War under date of 
March 6,'l90G. Inasmuch as all preWous computations of the diver- 
sions authorized at Niagara Falls have been based upon the older 
estimate it will be seen that the later and more accurate findings of 
the Government engineers, showing an average flow of 5^ per cent 
less in volume, makes the problem of the divei-sion more serious and 
menacing. To take such action, under these circumstances, as would 
either directly or indirectly commit the United States to the diversion 
of the full permissive amount mentioned in the treaty would be to 
propose the depletion of the Falls of Niagara by exceeding 20 per 
cent. Not even the most astute of the engineers who are here asking, 
by direction and indirection, for more water for private benefit 
would. I insist, venture to go on record as believing that this total 
diversion would be unimportant or less than destructive. 

It is here in point to say again that you have heard, and are hear- 
ing, and will hear from many who have plans at and about Niagara 
Falls, all looking toward the getting of a little more water. Not one 
of these plans in itself would work irreparable injury, but it is the 
aggregate of them that, although they have not exceeded much be- 
yond 50 per cent of the contemplated treaty diversion, have already, 
according to Gen. Marshall, " seriously interfered with and injured 
the scenic grandeur of Niagara Falls."' 

Presentation has been made in detail by the engineer of the Lake 
Surve}' as to the utilization of the water granted under the provisions 
of the .so-called Burton bill, approved June 29, 1906, and its extension. 
I desire to emphasize these presentations, calling your attention to 
the fact that one of the companies most insistent on access to an 
additional amount of water on the American side — the Niagara Falls 
Power Co. — is now. according to Gen. Marshall's report, realizing 
" only about two-thirds of the available head." The fact that this 
comjjany was a pioneer does not, I respectfully insist, in any sense 
make it proper that additional water be furnished from the glory of 
Niagara to make up for its lack of mo<:lem efficiency in using the 
water already given to it. I am not aware, as a master printer, for 
instance, I can claim any consideration from my customers or from 
the States when I am obliged to dispose at a great loss of my ma- 
chinery, which was up to date when installed, but which has l>een 
superseded b}^ more advanced and efficient items. 

The same criticism applies quite properly to the admission from 
Canada within the limitations of the Burton bill, of the power pro- 
duced by the Canadian-Niagara Power Co. at 'a utilization of but 
130 feet one of a fall of 172 fwt. and I respectfully urge that in line 
with Gen. Marshall's report, this company "should be called upon to 



250 PRESERVATIOISr OF NIAGARA FALLS. 

increase economy of conversion to the utmost limit permitted l)y the 
present condition of kno^^led^e." 

The water of Niagara is precious water: it belongs to all the world. 
It is of vast value to all the world as it ])lunges over the great preci- 
pice. And anv diversions from and depletions of its glory should be 
attended by the utmost possible economy and value, and I respectfuU}' 
urge this as one reason for declining to permit any additional diver- 
sions from Niagara on the American side, or admission of power 
from Canada, beyond the restrictions included in the Burton law 
above mentioned. 

TIk- recommendations in the report of the Chief of Engineers, pre- 
viously referred to, contain certain no\el propositions, looking, in one 
instance, as given on page 15, to the building of a "submerged dam 
placed in the bed of the river immediately above the Horseshoe Falls," 
and in the other instance, as mentioned on page 75, to '" the construc- 
tion of regulating works in the Niagara Kiver to avoid the wasteful 
outflow of the water of Lake Erie." 

If, upon further and detailed engineering study, these recommen- 
dations should prove practicable, and if the submerged dam in the 
first instance could be completed and in eft'ect observed Ijefore any 
further diversion was authorized, it might be worth while then, and 
in the event of no further chimage a[)pearing. for the P^ederal Govern- 
ment to consider an extension to the limits of the treaty permission. 

The American Civic Association has from the outset had no dispo- 
sition to interfere with the sincere investments of those who Avere 
develo]nng power at the time the wishes of the people of the United 
States became apparent, but it believes that no lease extension beyond 
the works then in actual or potential going form should be per- 
mitted, unless such extensions should be conclusively shown to pre- 
vent no further possibility of damage to the attractive and i)rofitable 
spectacle of Niagara Falls as the greatest cataract of the western 
world. 

In coiiclu>ion I w i.-li to urge u))ou your c-ommittee. as in line witli 
the most liberal thought of the American people, with whom we have 
had contact in letters, newspaper articles, and public meetings, aggre- 
gating the sentiment of millions, the qualification of existing pro- 
posed legislation before you. or the formulation of new bills, to bring 
about effectually and during the life of the treaty under discussion 
the recommendations found on page 15 of the document entitled 
" Preservation of Niagara Falls." already (juoted from, namely, that 
the "minimum limit'" of diversion autliorized on the American 
side — namely, 15,100 cubic feet per second — be recojnmended ; and 
that no greater amount of energy is permitted to be imported into the 
United States from Canada than 160,000 horsepower. 

Maintaining the status quo as thus outlined will be acting on be- 
half of the American people. Extending the use of the Avater, either 
by granting permits for the diversion of a single additional foot, or 
in' the admission of an additional horse})()wer from Canada will l^e 
for the interests of and in accordance with the demands of only ihc 
relatively few persons involved in the corporations selfishly develop- 
ing power from the waters of the Niagara River. 

'J'he Chairman. I*f you have anything further to. submit. Mr. ]Mc- 
Farland, as a part of your remarks, it will be incorporated in the 
record. 



PRESEKVATION OF NIAGARA FALLS. 251 

Tlio Chair Avants to say that the comniittee Avill take a recess in 
regard to the hearings concerning the Niagara Falls power hill until 
next Friday morning at 10 oV-lock. We desire to close the hearings 
in this subject next Friday, if possible. 

•Thereupon, at 12.25 o'clock p. ni., the committee adjourned until 
Friday. January 20. 1912, at 10 o'clock a. m. 



Co:Nr>riTTEE ox Foreign Affairs, 

House of Representatives. 
January 26, 1912 — 10 o'clock a. in. 
'V\\Q committee this day met, Hon. William Sulzer (chairman) 
presiding. 

The Chairman. Dr. McLaughlin, representing the Public Health 
and Marine-Hospital Service, will be heard this morning. 

STATEMENT OF BR. ALLEN D. McLATJGHLIN. 

Dr. McLaughlin, will you give your name in full and your re- 
lations to the Government? 

Afr. MrLAUGiiLiN. Dr. Allen D. ^fcLauglilin. first assistant sur- 
geon. United States Public Health and Marine-Hospital Service. 

The official interest of the Public Health and Marine-Hospital 
Service on this problem is of course limited to the sanitary assets 
solely, and it may be narrowed even further to the undue prevalence 
of tyi)hoid fever in the cities on the Niagara frontier. 

In P>ulletin No. 11 of the Hygienic Laboratory is published the 
results of a preliminary sanitary survey of the territory, touching 
upon sewage pollution of the interstate and international water, with 
special reference to its bearing on the spread of typhoid fever. Of 
course you readily understand that in the undue prevalence of 
ty])hoid fever in the cities of gi-eat industrial and commercial im- 
portance — cities Avhich by reason of the surrounding country draw 
a large number of visitors from every State in the LTnion — the ques- 
tion of water sup])ly involves the cities as an interstate matter; it is 
a great interstate matter because the traveler is not protected as well 
as the resident. He is at the mercy of the hotels and has to take 
what they give him. while the resident is warned that the Avater is 
dangerous. 

For this reason the Federal Government made this survey. 

The following extracts from the bulletin will show practically the 
view which I held before and which I have no reason to change. 

In lejiJinl to sewage disposal. Buffalo has done nothiiiii beyoiul conveying 
its sewage to the Buffalo and the Niagara Rivers. It amounts to about 
11(J.()(M».00() gallons daily. Proper sewage disposal requires two things — it must 
not create a nuisance and it must not be a menace to health. 

It is conceded that a stream flow of 3^ to 7 cubic feet per second for each 
],0<)0 ]iopulation will care for sewage so that no nuisance is created.. Accord- 
ing to this calculation Buffalo would require for disposal of its sewage from 
the standiioint of nuisance, a stream How of about 1..500 to 3,0<.M) cubic feet 
l)er second. The Niagara River has a flow of about 220,000 cubic feet per 
second. 

From the standpoint of menace to health, Buffalo's sewage disposal is an- 
other question. While the dilution is great, it is not a.s great as it appears 
at (irst glance, because of the fact that the polluted current hugs tlie shore 



252 , PRESERVATION OF NIAGARA FALLS. 

au<l Ibe complete diUition with the entire mass of water does not take place. 
Owiiis to the velocity of the stream, sedimeutntion is scarcely possible, and 
thi.s \Glocity is another dangerous factor in carrying contamination quickly 
from Buffalo to the water fronts of other cities lower down the river. 

The sewage of Buffalo is unquestionably a great menace to the inh.-ibitants 
of the Touawandas, Niagara Falls, and Lockport, just as the .sewage of the 
Toiiawandas is a menace in lesser degree to the people of Niagara Falls, so long 
as these communities drink unfiltered or untreated water from the Niagara 
River. The position of the intake well out in the channel may jjroteirt from 
the shore pollution during good weather conditions, but its safety because of 
this is not assured. One thing is certain — the Niagara River can not be used 
as a sewer and at the same time be expected to furnish safe drinking water at 
all times without filtration or treatment of the water. 

Even if the entire sewage of Buffalo was diverted from the Niagara River, 
there is a question whether this stre:im could furnish a raw unfiltered or 
untreated water safe to drink 'M'} days in the year. One tributary stream 
alone, the Buffalo River, empties into the Niagara in time of flood as much as 
20,(K)0 cubic feet per second, the drainage from a very large and populous area. 

The question of practicability of stopping the pollution of the Niagara River 
and of making the water safe for drinking purposes in its raw state requires 
very .serious and close study. Certainly there are obstacles in the way which 
are very great from an engineering and economic st:nidi)oint. In view of these 
facts, it is the plain duty of municipalities now driidving Niagara River water 
withont adequate filtration to take steps toward making such water safe while 
awaiting the solution of the larger problem of sewage pollution of the stream. 

These municipalities have all failed in their duty to provide drinking water 
for their citizens. The Touawandas have a sense of false security by reason 
of the position of the intake.s. The municipal officials of Niagara Falls could 
have had no such delusion. They were informed by their own health oflicers 
and must have known for years that they were drinking dilute sew.ige and that 
the typhoid rate was continuously higher than any other American city, yet it 
was not unlil KK)8 that steps were taken to filter the water, and the plant is not 
yet in operation. Niagara Falls's dereliction of duty was more culi)able for 
another reason: during summer and autumn months thousands of ])ersons 
visited the citv from eveiy State in the Union and from foreien countries as 
well. 

In a word, purification becomes necessary for two reasons, viz: 

1. To obviate nuisance. 

2. To protect the public health. 

The first, that of nui.sanee, is eliminated at once by the enormous 
stream flow, and will be touched upon later. 

The second, menace to health, is present in spite of the enormous 
volume of water available for dilution, because these municipalities 
persist in usinir unfiltered and not-treated water for public water sup- 
plies. The public health can be adequately protected at once ao'ainst 
the present pollution of the Niagara River by the installation of 
proper plants for treating or severing the water supplies of the vari- 
ous municipalities using the Niagara River as a source of public 
water supply. 

The al)solute prevention of pollution of a large stream draining a 
large and popidous watershed is an impossible idea. Prevention 
of pollution to the point where the stream is safe for drinking a 
part of the time and restricting the pollution in amounts are feasible, 
but prevention of pollution to the point where such a river as the 
Niagara is safe for drinking eveiy daj^ in the year without filtration 
or treatment is an impossibilit3\ 

The crying necessity of all these cities from a sanitary standpoint, 
and especially from the .standpoint of typhoid-fever reduction, is fil- 
tered or treated water .supplies properly supervised to insure safe 
drinking water 365 days in the year. 



PRESERVATION OF NIAGARA FALLS. 253 

Sewago purification may be necessary and often is necessary in 
spite of the presence of filtered or treated pnl)lic water supplies in 
order to furnish a good raw water for the filter plants. The sewage 
pollution of the Niagara Iviver at present probably does not cause 
at any of the intakes — IVifl'alo. Tonawanda, Xorth Tonawanda. 
Lockport, and Niagara Falls — a bad raw water. B}^ a bad raw water 
T mean a water not amenable to treatment without putting an unrea- 
sonable strain, responsibility, or cost upon a properl}^ constructed 
pnrification plan. Niagara Falls primarily had a very bad raw water 
taken from the Niagara Falls PoAver Canal, but the new intake, 
1,500 feet from shore, should furnish a good raw water, though not 
a safe water without purification. Their intakes were 1,500 feet from 
the shore, and they really thought their intakes were safe. The 
Niagara Falls municipal water officials took their water from the 
Niagara Falls Power Canal, which was shore water, practically, and 
which was verj^ polluted. 

Disposal of sewage by dilution is the cheapest known means of 
sewage disposal, and we would be very foolish if we failed to avail 
ourselves of this means wherever possible without detriment to the 
public health. As a general proposition it is cheaper to purif}^ water 
than sewage. 

An absolute prevention of jjollntion is impossible. What we need 
is control of pollution within permissible limits. Disposal by dilu- 
tion should be permitted up to these limits. The permissible limit 
of pollution should be determined by water examination; and offi- 
cial standards for raw water, which will fix the boundaries of per- 
missible pollution, are a necessity. 

AMien the sewage contribution to the Niagara reached the point 
where a good raw is not obtainable, or where the water as furnished 
puts an unreasonable strain or excessive cost on the water purifica- 
tion plants, then purification of the sewage becomes necessary- to 
the point where a good raw water is assured. 

It is largely an economic question, and the balance between these 
two great agencies — water ]jurification and sewage purification — 
must be adjusted with a nicety. No general rule can be formulated, 
as each city is a distinct problem. It would be unjustifiable to insist 
upon an expensive ideal method where the same results — the proper 
safeguarding of the public health — may be affected at a lower cost 
by judiciously combining disposal of sewage by dilution, or a par- 
tial purification of sewage with water purification. 

Only by turning b:iek the streams tlmt pollute the east end ot Lake Erie 
iuid the Niagara River can conditions be remedied. 

]Mr. Sharp. Will you. i)lease rejieat that last observation there? 

Dr. ]McLaugiilin. " Only by turning back the streams that pollute 
the eastern end of Lake Erie and the Niagara River can conditions 
be remedied." This statement in Mr. Bowen's letter is attributed to 
Mr. Isham Randolph. I presume by conditions he means sanitary 
conditions, especially extensive prevalence of typhoid fever. If so, 
I must take issue, as it is clear to the writer that proper water puri- 
fication in these cities will remedy the conditions without turning back 
the streams. Such turning back of the streams might improve the 
quality of the Niagara River, but not to the point where it would 
28305—12 17 



254 PRESERVATION OF N'JAGAEA FALLS. 

be a safe drinkini; water without ])urification every day in the year, 
especially following heavy rains and floods; and, as indicated above, 
a good raw Avater amenal)le to treatment is secured at any of the 
intakes under discussion. 

Outside of the question of safe water supplies, and to return to 
the question of sewage disposal to obviate nuisance, the projected 
canal as a sewage carrier, or as a recipient of a more or less purified 
sewage effluent, has distinct disadvantages compared with the 
Niagara River. The Niagara River, with a stream flow of 220,000 
cubic feet per second, could take care of sewage in this area from an 
urban population of more than 50.000,000 Avithout nuisance — obvi- 
ouslv for a very long time in the future. 

The proposed (1.000 cubic feet per second of canal flow would be 
able to care for the scAvage of tl^ese cities Avithout .nuisance for a 
much shorter time. Theoretically from 8| to 7 cubic feet per sec- 
ond of stream flow Avill care for seAvage of 1,000 persons Avithout 
nuisance. This Avould mean that the theoretical limit of disposal in 
this Avay by the canal Avould be reached Avhen the population reached 
1,700,000. P]x])erience shows that the limit of seAvage disposal by 
dilution is reached more quickly for certain reasons. 

ATr. Sharp. AVhere you difl'er Avith Mr. BoAAen. you mean in thar 
connection the seAvage disposal proposition for each city so as to pre- 
vent it being throAvn into the stream? 

The Chairman. He means filtered. 

Dr. McLaughlin. Yes. Xo rule can be furnished Avhich Avill cover 
every city. At present the raw Avater at the intakes 1,500 feet from 
shore is so good that many people contend that it doesn't even need 
filtration. But it is the plain duty to put in purification plants, be- 
cause even after an ideal scheme of scAAage disposal you couldn't 
make the water safe Avithout purification. 

Mr. Sharp. What I had in mind Avas this: Quite a number of 
foAAns and cities are located on the streams, and the question has 
been raised in a number of those places as to the proper distribution 
of scAvage in those toAvns. so that it will not escape into the rivers that 
run doAvn into the lake Avhich contaminate the lake quite as much 
at the toAvns located right on the lake, because the streams run direct 
from those towns into the lake. I knoAv on Lake P^rie there are quite 
a number of those toAA^is. 

Dr. McLaughlin. Yes, sir. I made the survey of all of those from 
Toledo to Buffalo on Lake Erie. 

I might say here that Ave come in on that. Apparently, they con- 
sider it our duty as public health officers to consider bad odors and 
smells the same as disease, and that is true of all the toAvn and village 
officers. 

The Chairman. Doctor, Avhat liaA'e you to say regarding the ad- 
visability of conferring jurisdiction on the Liternational AVaterAvays 
and Boundary Commission to prevent the pollution of the streams 
and lakes betAveen Canada and the L^nited States? 

Dr. McLaughlin. I really never thought of that. Mr. ChairmaiL 

The Chairiman. Why wouldn't that commission be a good body to 
haA'e jurisdiction? 

Dr. McLaughlin. I think the control of the pollution of the 
streams. Avithin permissil)le bounds, should ho taken care of by the 
Public-Health Service of the Ignited States. 



PRESERVATION OF XIAGAKA FALLS. 255 

The Chahoiax. Is the Public-Health Service of the United States 
doing anything to prevent the pollution of the waters between 
Canada and the United States? 

Dr. McLaughlin. I don't think the Public-Health Service has 
such power, sir. 

The Chairman. Then between the International Waterway's aiid 
Boundary Commission and the Public-Health Service of the United 
States, you think the jurisdiction should be in the Public-Health 
Service ? 

Dr. McLaighlin. I believe that the officers of the Public-Health 
Service are qualified and competent and it would be in line for their 
Avork to take the necessary examination, which is the only way it can 
be controlled by a systematic control of the water. 

The CHAiR:\rAN. The International Boundarv Commission can do 
that. 

Dr. McLaighlin. Yes. sir; very nicely. 

The Chair:\ian. The International Boundary Commiasion Avoukl 
have jurisdiction on both sides — the Canadian side and also the 
United States side — and it could make rules and regulations b}' 
which the waters could not be polluted along these streams and lakes 
in the United States and Canada. 

Mr. Sharp. May I ask you. Mr. Chairman, in that connection, in- 
asmuch as you have given some thought, evidently, to this, Avhat 
would be the outcome of launching that power in that commission 
w'ith reference to having any conflict with the boards of health in 
the different cities bordering on these lakes? 

The Chairman. I doubt if there would be much conflict, because 
you can give jurisdiction to the International Boundarv Connnission 
and that l)ody Avould then formulate rules and regulations. 

Mr. Garner. They are limited in their power. Under what pro- 
vision of the Constitution are you going to turn over the regulation 
of the health of the people, either by the commission or by Dr. 
McLaughlin's department or any other department? Plow are you 
going to say — under Avhat provision of the Constitution are you 
goizig to turn over the regulation of the health of the people from 
the State of Xew York to the Federal Government ? 

The Chairman. I might answer, the general welfare clause. 
[Laughter.] 

Dr. McLaughlin, Mr. George M. Wisner, chief engineer of the 
sanitary district of Chicago, has found that, althougirtheoretically 
Chicago should not reach the limit of disposal by dilution without 
nuisance before 1920. as a matter of fact the limit has already been 
reached, and a nuisance actually exists at the jjoints on the drainage 
canal system. (Vrtain urban wastes, such as stockyards refuse, etc. 
make the contribution for 1,000 persons from large cities richer in 
organic matter and putrescible materials than that from 1,000 per- 
sons in smaller conununities. Mr, Wisner further shows that the 
oxygen of the fresh lake water, which is the agent which i)revents 
nuisance, is robbed from the Avater by the deposits of septic fludge 
accumulating in long reaches of (piiet flow, and consequently is not 
available for action on the fresh sewage. This l)eing a power canal, 
with dams and long reaches, it will afford excellent chance for sedi- 
mentation and the formation of the fludge deposits which greatly rob 
the water of its oxvu'cn. The arowth. connnercinl and industrial. 



256 PRESERVATION OF NIAGARA FALLS. 

which Avill probably accompany this power development, will further 
approximate the condition against which Chicago is struggling. 

It is certain, if this proposed canal is used for the disposal of 
sewage by dilution, that nuisance will result before the urban popula- 
tion reaches one and three-quarters million. This will necessitate 
one of two things: 

1. Increased stream flow through the canal for dilution purposes, or. 

2. Purification of the sewage before discharge into the canal. 
The first solution, increased stream flow of the canal, may be im- 
practicable because of laws and treaties existing or to be made. 

The second solution, purification of the sewage, will impose an 
excessive burden upon the city of Buffalo, which it will be difficult to' 
justify, in view of the fact that the disposal by means of the Niagara 
River, whether by simple dilution or partial purification, will be 
found a much cheaper proposition. 

Mr. (Jarxer. I^t me ask you a question. Doctor, if you will permit. 
You have given ns a very interesting statement concerning what I 
might term the neglect of the officials of the different cities and the 
State of New York to preserve the health of their people. The ques- 
tion we have got under consideration is the carrying out of a treaty 
between Great Britain and the United States to utilize certain waters in 
the Niagara River, and the particular question Ave have got under con- 
sideration is the question whether we have utilized 4,400 feet not now 
authorized by statute, and Avhether or not we Avill let in from Canada 
certain power — the question of power a'ou have nothing to do Avith. 
Now, Avhat conditions could Congress make in considering this ques- 
tion that would remedy the defects — the citizens themselves, or the 
neglect of the citizens themselves, to take care of their OAvn health? 
AVliat remedy could you suggest that Congress could provide to 
protect those people against themseh^es? 

Dr. JNIcLai GHLix. I think that in the interest of the general good, 
from an interstate standpoint, there should be official standards of 
Avater, raAv Avater, in rivers used as sources of drinking supply. 
These standards should be a minimum to Avhich the States could add 
such restrictions as they see fit under their hiAvs. This should be the 
minimum requirement to give us protection in a State where there 
are no laAvs. Take the State of Michigan. I can speak of it because 
I am from Michigan. We liaA'e no laws controlling the Avater supply, 
and the city of Port Huron can pollute the Avaters of Lake Huron. 

Mr. Garxer. Then, if I understand you, you Avould haA^e the Con- 
gress of the United States pass a laAv undertaking to go into a State 
and to compel the States to use a certain kind of water for drinking 
purposes, making a standard of Avater to be drunk in the State? 

Dr. McLaughlin. Making a standard that they shouldn't drink 
any water worse than that. 

Mr. Garner. Under Avhat provision Avould you get into the waters 
of the States that isn't interstate commerce ? 

Dr. McLai'giilin. I think that the undue i)revalence of a dan- 
gerous disease in a great city of great industrial and commercial 
importance, for instance Pittsburgh, is something more than a local 
or State matter. I don't knoAv Avhat authority Ave have and we are 
under the impression that Ave haven't any authorit}'. AVe have made 
a scientific inA'estigation to show the necessity of that. 



PRESERVATION OF NIAGARA F.\LLS. 257 

Mr. Garnek. I think you are to be congTatulated upon your efforts 
to take care of the public heakh. The only thing I was trying to get 
at was has Congress the power to regulate these matters or isn't it a 
matter that the people ought to take action upon themselves. And 
they ought to be educated up to the standard that you would have 
them go. 

Dr. McLaughlin. The position of our service is that the health 
machinery ought to be in the hands of the State. But we ought to 
have a standard just as Ave have in quarantine law. We helped them 
in the State of New York during the cholera epidemic. 

The Chairman. Doctor, will you be good enough to leave your 
statement with the reporter? 

Mr. DiFENDERFER. This committee is after information bearing 
upon certain subjects that have been explained to you. Are you 
acquainted with the health officer. Robert Talbott, of Xiagara Falls? 

Dr. JNIcLaughlin. I met him; yes, sir; when I was there. He had 
just been appointed. 

Mr. DiFENDERFER. Do jou kuoAY whether or not he is an efficient 
officer? Do you regard him as such? 

Dr. McLaughlin. I don't know anything about hinh His prede- 
cessor had been there a great many years. 

Mr. DiFENDERFER. Hc lias made a statement here which I have 
taken from one of the newspapers. It is entitled, " City's drinking 
water polluted hy Buffalo and Tonawanda sewage." It is a short 
article and I would like to make this a part of the record, if you 
please, Mr. Chairman. 

The Chairman. There is no objection to that. 

city's drinking water POLI.L'TKn BY UUFFALO AND TONAWANDA SEWAGE — HEALTH 
OFFICER TALBOTT TELLS WHY" THERE WERE :!r)S CASES OF TYPHOID AT NIAGARA 
FALLS LAST YEAR. 

Niagara Falls, January 11. 

The most interesting chapter in the aniuitil report of Health Officer Robert 
Talbott. submitted to Mayor Philip J. Keller yesterday afternoon, was that 
bearing upon the subject of typhoid fever in the city. The report showed that 
during the year there had been reported a total of 358 cases of typhoid fever — 
nearly one for every day in the year. On the subject of typhoid. Health Officer 
Talbott said: 

" Typhoid fever seems to be the bugbear of all diseases in our city, and this 
year we have almost twice as many reported as we did last year. Is it any 
wonder that we have so much typhoid within our city? We are drinking water 
from Niagara River, which is the receptacle of all sewage wi\ter from Buffalo 
and Tonawanda, saying nothing of the polluted streams that emitty into Lake 
Erie. AVe have voted on the water question, discussed it from all standpoints, 
spent plenty of money, and are still spending it, and yet our water is con- 
taminated. We have e.xperimeuted with the different processes and they have 
been found wanting, but for the sake of suffering humanity let us hope 1912 
will put within our reach water that is pure and fit to drink. The past year 
we have had 35S cases reported, and I trust each physician has done his duty 
in re])ortlng every case to show how many cases a city of 30.000 population has 
had during the year 1911. 

" Of course, our city has been visited by thousands of tourists, and I know 
of many who claim they got the dreaded disease while visiting here. Time 
and time again I have caused to be published in the daily press warning not 
to drink or use for domestic purposes water taken from the city mains, as it 
seemetl to mean sure t.vphoid and maybe death, but those notices were not 
always heedetl. Is that a fact our city should be calletl on the State laboratories 
have been most active and, indeed, most thorough in the examination of our 
drinking water, and each month have rendered a i-eport of their findings, and 



258 PRESEKVATIOX OF NIACAKA FALLS. 

to llieiii. much ;is their wariiiiijxs iiiid lal)or. have been for the welfare i)f 
NiapiiM Falls" citizens, who ai'e consumers of this water." 

Mr. DiFENDERFER. Now in connection with drainage, I Avoiild like 
to ask a few questions that I have mapped out here : About how much 
has the Chicago Drainage Canal cost, if you can ansAver that 
question ? 

Dr. McLaughlin. I can answer api^roximately, although I don't 
have anv right to give anv information on that point. I think it was 
about $tO,000,000. 

]Mr. DiFENDERFER. About liow long has it been in operation ? 

Dr. McLaughlin. It has been in operation since 1900. 

Mr. DiFENDERFER. NoAv caii jou give the reduction in the percent- 
age of typhoid and other such diseases in Chicago during that 
period ? 

Dr. JNIcLaugiilin. You will accept approximate figures? 

Mr. DiFENDERFER. YcS. 

Dr. jNIcLaugiilin. For 11 years previous to the installation of that 
drainage canal the rate of typhoid fever per 100,000 was 56, I think 
for the 10 j^ears. I think for the last 7 years in Chicago the rates 
have been only about 17. 

Mr. DiFENDERFER. Seventeen per thousand? 

Dr. McLaigiilin. Per 100.000. 

Mr. DiFENDERFER. Dr. Evans is health officer of Chicago? 

Dr. McLatgiilin. No, sir; a surgeon of our service is now there. 

Mr. DiFENDERFER. Was Dr. Evans at any time connected with it? 

Dr. ]\IfLAUGHLiN. He was health officer up to a year ago. 

Mr. DiFENDERFER. Do yoii know whether he attributes the increase 
to the purity of the drinking Avater ? 

Dr. McLaughlin. The decrease, you mean. 

Mr. DincNDERFER. I meant to say decrease. 

Dr. McLai(;iilin. Yes. sir; T think very rightly so. There wasn't 
any question but what the diverting of the sewage from the lake 
front had a great elfoct in reducing typhoid fever. 

Mr. DiFENDEHFER. TlieiL if that is the case, would it not be well 
for the Niagara frontier to obtain such a result if they could? 

Dr. McLai GHLix. Provided such results could be obtained without 
undue cost. The cases are not parallel. I don't see where you can 
compare a rapidly flowing river with the quiet water of a lake. 

Mr. DiFF.NDEUFKK. Well, if Ave continue to take Avater from the 
Niagara River 1,500 feet out from the American side, it Avon't floAV 
as rapidly, will it. as it has been flowing? You reduce tlie depth, 
do you not ? 

Dr. ^VIcLaigiilin. That would l>e a very small matter. Ahnost 
negligible. 

Mr. (tarner. Would the possibility for a slight deflection of the 
river be less from a canal running from the Niagara River than 
from the Chicago Canal, because of the greater rapidity with wdiich 
it Avould flow { 

Dr. McLai (iiiLiN. T don't think tliere would be any difference in 
the quiet stretches of Avater behind the canal. Both canals would 
furnish excellent ])laces for sedimentation. 

Mr. (lAKNER. The riA-er? 

Dr. McLai:ghi,in. I dou't know. 1 don't think tliere Avould be any 
arreat difference. 



^ 



PRESERVATION OE NIAGARA EALLS. 259 

The CiiAiKMAx. AVe are imich obliiivd to yon. Doctor. Mr. Barton 
is ijreseiit and will now be heard. 

STATEMENT OF PHILIP B. BARTON. 

Mr. Barton. In connection with the qnestions that are asked me, 
may I have the privilege of volunteering certain information? 

The Chairman. Yes. 

Mr. Barton. I am manager of the Niagara Falls Power Co. 

Mr. Chairman and (xentlemen, we did not intend to make any 
other statement at this time than that presented by Mr. Brown. I 
:«m simply here to answer any questions that the committee may 
wish to ask. 

Mr. Sharp. AMiat position do vou hold and whom do you repre- 
sent? 

Mr. Barton. The Niagara Falls Power Co.; I am vice president 
and general manager of the Niagara Falls Power Co. 

Mr. Sharp, Are you fainiliar with the equipment for using that 
power in a mechanical sense? 

Mr. Barix3n. I am. 

Mr. Sharp. It has been said here by different witnesses at different 
times through this hearing that there was not the efficiency developed 
that there ought to be in the economical use of this power. If that 
is true, to what extent is it true — not only in your company, but 
if you know of the other concerns using power, applying to them 
also? 

Mr. Barton. The tunnel of the Niagara Falls Power Co. has a 
loss of about .55 feet — that is. a slope, a difference in level — between 
the upper end of the tunnel and the lower end, and about 55 feet, 
which, of course, results in loss in the amount of power that can be 
developed from the head available between the river above the rapids 
and the ri\er below the Falls. 

Mr. Sharp. Can that be remedied in any way by more efficient 
ecpiipment ? 

Mr. Barton. In connection with second tunnel that we had planned 
to put in if we should develop our second hundred thousand horse- 
l^ower, Ave had under consideration the plan to put in a very much 
larger tunnel at a lower level, and in that way not only make our 
second develoi)ment more efficient than the first but also help the 
loss of the head in the first tunnel by connecting the old wheel pit 
with the new tunnel. B)it we did not develop the second half of our 
power, 

Mr. Sharp, Can you do that with profit vvith your ])resent diver- 
sion of water? 

Mr, Barton, I don't think we could, because the cost of the tunnel 
and the alteration of the ])lant would be exceedingly expensive. It 
is a serious question Avhether it would be commercially feasible. Pos- 
sibly it might. But it is a serious question, 

Mr. Sharp. What would you say if you had the knowledge of 
the other companies who use this power, as to their efficiency com- 
])ared with what it might be made? 

Mr. Barton. T don't know that I ought to speak for the other 
companies because T have only a general knowledge of their features. 
1 think the hydraulic company is using water about as efficiently as 



260 PRESERVATION l)i' NIAGARA FALJ^S. 

it is possible to be used with the head they have got. So are we. 
The companies on the Canadian side are using water about as effi- 
cienth' as it is coniniercially possible to use it. considering their loca- 
tion, (^f course the reason for this loss of a head with Niagara 
I'alls Power Co.. which has been spoken of, I think has been ex- 
l)lained. When we built our plant in 1890 one of the very first con- 
siderations that our directors had in mind was that there should be 
no interference of any kind whatever with the scenic features of the 
Falls. For that reason we placed our plant a mile and a half above 
the Falls, where it could not be seen by spectators of the Falls, and 
that necessitated a long tunnel. In order to get water with suf- 
ficient rapidity the tunnel was given the necessary slope. At that 
time there Avas no question about the amount of water to be used. 
'Jliat was '2'2 3'ears ago. The amount we could use in any case would 
be absolutely a negligent quantity so far as the scenic beauty is con- 
cerned. As was explained to you the other day by advice of the 
most eminent engineers that could be found in the world that slope 
was adopted, and the whole thing was done largeh^ to preserve the 
scenery, on account of which we are now being criticized for the lack 
of efficiency. 

^Ir. DiFENDERFER. What time in the day do you use the most force 
to create your power or the most water? 

Mr. Barton\ Our load is substantially uniform throughout the 
24 hours. It is almost a straight line. From midnight until 7 
o'clock in the morning there is a slight depreasion due to the falling 
off of the load at Buffalo. Between the hours of 4 and G o'clock in 
the afternoon in the fall and winter months there is a decided 
peak due to the overlapping of the heavy street car traffic and the 
lighting load when the lighting commences somewhat earlier due to 
the longer night. 

Mr. DiFENDERFER. Tlieu during the day you would consume more 
water than 3'ou would from 12 o'clock to 7 o'clock the next morning, 
w^ould you not, during daylight? 

Mr. ]5arton. Yes, sir; slightly, but the difference in efl'ect on the 
aj^pearance of the Falls is absolutely imperceptible. 

^Ir. DiFEXDERFER. That Avould be about the time when visitors 
would like to see the Niagara Falls at its best, wouldn't it ? 

^Ir. Barton. I presume that is the case; but they couhln't possi- 
bly see i\nj difference. 

Mr. DiFENDERFER. Thcu at the time the most water is falling 
over the Falls would be at the time Avhen they were sleej^ing. 

Mr. Barton. Theoretically, yes; but our variations are small, and 
as a matter of fact cause no variations in the depth of water at the 
crest of the Falls. 

Mr. DiFENDERFER. There is one other question I would like to 
ask in that connection and that is this: How do you measure the 
water that you take from the Falls, by the hour, or do you measure 
it by the day — 24 hours, is that where you get your measurement 
from per hour? 

JMr. Barton. The amount is determined by means of half hourly 
readings of the electric horsepower output on the basis, fixed by 
the Government engineers, of the relation between output and quan- 
tity of water. This then makes accurate measurement every half 
hour. 



PBESERVATION OF NIAGARA FALLS. 261 

Mr. DiFE>'DERFEK. That was done by measurement? 

Mr. Barton. That determination was made by measurement, they 
determined the rehition between the water taken by our plant and 
the output in electrical horsepower. ^Ve keep a continuous record 
of our output. 

Mr. DiFENDERFER. By the hour? 

Mr. Barton. Eveyy half hour, and those records are transmitted 
to the War Department, and they can see by that data whether at 
any time we have exceeded the limit. 

Mr. DiFENDERFER. Under that agreement, what are you privi- 
leged to use? 

Mr. Barton. It Avasn't an agreement, it was a requirement of the 
law. "We are permitted to use 8,G00 cubic feet per second. 

Mr. DiFENDERFER. Have you used that at any time? 

Mr. Barton. Yes, sir. 

Mv. DiFENDERFER. The full auiouiit ? 

]SIr. Barton. We have been using that continuously. 

Mr. DiFENDERFER. I believe it is in evidence that the cost of pro- 
duction on the Canadian side is about $9 per horsepower. Do you 
care to state what the cost of producing this power — I believe you 
are a transmitting company? 

Mr. Barton. We are a generating and transmitting company. 

Mr. DiFENDERFER. Distributing company, are you? 

Mr. Bartom. We distril)nte to seme extent. We distribute to our 
own customers at Niagara Falls, and on the Canadian side the 
Canadian Niagara Co. at Bridgeburg and Fort Erie distributes a 
small amount to consumers. 

Mr. DiFENDERFER. I would like you to state to this committee what 
the cost per horsepower is for generating this electricitv. 

^Ir. Barton. Our cost last year. 1011 — I am not j^retending to give 
the exact accurate figures— was approximately $14.50 per horsepower. 

Mr. DiFENDERFER. Now. you sell that power, do you not, to dis- 
tributing companies i 

Mr. Barton. AVe do; some of it. 

Mr. DiFENDERFER. Havc you any idea what they charge the citizens 
of Buffalo and Lockport ? 

Mr. Barton. The price we charge them? 

Mr. DiFENDERFER. Havc 3'ou any idea what they charge the pub- 
lic? I understand there are three profits that come out of this. 

Mr. Barton. That is a mistake. We sell the Buffalo City line 
to the Cataract Power & Conduit Co.. which takes fi-om us and dis- 
tributes in Buffalo about 05,000 horsepower. 

Mr. DiFENDERFER. Now to Avliom do they sell? 

Mr. Barton. Of that ()5,000 horsepower they sell about 55,000 di- 
rect to consumers, and about 10,000 is sold to the Buffalo Oeneral 
Electric Co., which is an electric lighting company, engaged in busi- 
ness long before the Conduit Co. was organized and before we began 
to deliver power. 

^Ir. DiFENDERFER. Then it passes through three hands? 

Mr. Barton. Tlie power delivered to the lighting company, which 
is used only for lighting and running small motors, passes through 
three hands. 

Mr. DiFENDERFER. Then there are, naturally, three ])rofits? 

]Mr. Barton. In that case there ouofht to be. 



262 PKICSKHVATIOX OF X'iACAKA FALLS. 

Mr. DiFEXDKRrEH. T should judge so. 

Mr. Barton. But the investment in that lighting company Avotdd 
have been just the same if there had l)een only one company. 

Mr. Dtfexderfkr. Noav, of course, when you make up your esti- 
mates of cost you include in that your capital invested? 

Mr. Bartox. The costs that I gave you? 

Mr. DiFEXDERFER. YcS. 

Mr. Bartox. That includes all expenses, fixed charges, operating 
charges, cost of transmission. 

]\Ir. DiFEXDERFER. Wlmt lias been the cost of the construction of 
that plant up to this time? 

Mr. Bartox. Taking the whole property of the Niagara Falls 
Power Co. and the Canadian Niagara Co. on both sides of the river, 
the actual investment to-day is abont $24,000,000. 

Mr. GooDWix. Do you include in your estimate of cost the interest 
on the investment? 

Mr. Bartox. Yes, sir; if you refer to cost of production, interest 
on the bonds, etc. : but no interest is included in cost of investment. 

Mr. DiFExnERFER. HoAv do you account for its costing so much 
more than the cost of production on the Canadian side? 

Mr. Bartox. AVliat figures do yori take as the cost of production 
on the Canadian side? 

Mr. DiFEXDERFER. Nine dollars per horsepower. 

Mr. Bart(~>x. That is the selling price on the Canadian side, not 
the cost of production. 

Mr. Dn-'EXDERFER. Twelve dollars I understood was the selling 
price on the Canadian side. 

^rr. Bartox. Nine dollars and forty cents is the price at which I 
understand the Ontario Power Co. sells to the hydroelectiic com- 
mission. 

]Mr. DiFEXDERFER. TliQU the cost of producing is about that, as I 
understand it ; they are furnishing it at the cost. Now, the question 
asked Avas, Plow do you account for this difference between the cost 
of production on the American side and the cost of production on 
the Canadian side? 

^Ir. Bartox. T don't admit that i^0.40 is the cost of production on 
the Canadian side. 

Mr. DiFEXDERFER. AVould vou sav tliat they are giving it away for 
less than cost? 

~Mr. Bartox. I don't know: I have no information. But. leaving 
that question aside, it naturally costs ns more to generate and deliver 
on the American side. We have a larger investment because we have 
a larger tunnel, as I have explained, and for other reasons. 

Mr. (toodavix. How modern is the Canadian company? 

Mr. Bartox. The Canadian plants are not complete yet. There 
are three of them, and none of them actually completetl. They were 
all started at ap]n-oxiniatelv the same time, about 1901 or 1902, I 
think. 

]\Ir. (lARXER. AVould you mind telling the committee if there is 
any Avater connected Avith your company outside of what you take 
from the Niagara Piver? 

Ml'. Bartox. You mean in (he capitalization? 

Mr. (lARXFR. The caintaliz-ation. 



PKESERVATIOX OF NI.UiARA FALLS. 263 

Mr. Barton. I doirt think there is, sir. 

Mr. (tarner. How did you organize witli a capital of twenty-four 
million to begin with. 

Mr. Barton. The capital stock is about $5,760,000. The bond 
issue is a little over $18,000,000. The original capitalization started 
Avas $10,000,000 of bonds— first -mortgage bonds— and about $4,000,000 
in stock, before the American plant was completed, $3,000,000 in 
bonds in addition were issued, making $13,000,000 and $4,000,000 in 
stock for the American plant. 

Mr. DiFENUERFER. Now, if your directors should conclude to become 
distributors in the city of Buffalo, would you consider that you had 
capital enough to do so? 

Mr. Barton. In that case we should have to raise more capital. 

Mr. DiFENDERFER. You could raisc it, could j^ou? 

Mr. Barton. I think so. 

Mr. DiFENDERFER. AMiy is it vour company does not distribute in 
Buffalo? .... 

Mr. Barton. Because there is a distributing company there, and 
there is no reason to go into competition with them. 

Mr. DiFENDERFER. Doii't you think so? Don't you think, as a pro- 
ducing company, you could go into competition with them and sup- 
ply the people of Buffalo with power at less cost per horsepower? 

Mr. Barton. I do not think so. We should have to make the same 
investment they have made, and I don't see hovr we could sell power 
any cheaper. 

Mr. DiFENDERFER. Do vou Ivuow if there is any gentlemen's agixie- 
ment existing now ? 

Mr. Barton. There is more than a gentlemen's agreement. There 
is a contract. We have specificalh' agreed not to go in, in considera- 
tion of their agreeing to take and pa}' for a large amount of power 
at a specified price for a long term of years. 

Mr. DiFENDERFER. D(X'S the hvdraulic companv distribute in 
Buffalo? 

Mr. Barton. Xo; they do not. 

Mr. DiFENDERFER. Do tlicy sell poAver as you do? 

Mr. Barton. In Buffalo? 

Mr. DiFENDERFER. Yes. 

^Ir. Barton. They do not sell any power in Buffalo. 

Mr. DiFENDERFER. It is confiued principallv to Niagara Falls, is 
it not ? 

Mr. Barton. Yes. sir. 

Mr. DiFENDERFER. Do VOU distribute any in Niagara Falls? 

]Mr. Barton. We do. 

Mr. DiFENDERn:R. To big consumers? 

Mr. Barton. About 80.000 horsepower. 

Mr. DiFENDERFER. Does the hydraulic company infringe upon your 
territory in the neighborhood of Lockport ? 

Mr. Barton. A^'e have no territory. 

Mr. DiFENDERFER. You distribute in Lockport? 

Mr. Barton. AA^e do not. 

Mr. DiFENDERFER. To wlioui do you sell? 

Mr. Barton. AA"e sell poAver to the International Railway at 
Tonawanda. It has a transmission line going through Lockport. 

Mr. DiFENDERFER. They supply Lockport ? 



264 PRESERVATION OF KIAGAKA PALLS. 

Mr, Barton. They do not. They use power for their own rail- 
way purposes. 

Mr. DiFENDERFER. Who distributes power to Lockport? 

Mr. Bartox. I understand there is a local company there the name 
of which I have forgotten. 

Mr. Difenderi'^r. Do you know who furnishes them with their 
power ? 

Mr. Barton. They get some of their power from the Niagara & 
Lockport and Ontario Power Co. 

Mr. DiFENDERFER. Do they get any from you ? 

Mr. Barton. They do not. 

Mr. Sharp. I may have misunderstood you, but in your reply to 
Mr. Goodwin in reference to the companies on the Canadian side, 
did you state that they had not completed their equipment over 
there yet ? 

Mr. Barton. None of their plants are as yet completed. 

Mr. Sharp. They are supplying power there, are they not? 

Mr. Barton. Yes. but they are not completed to their ultimate 
capacity. 

Mr. Sharp. What will be their ultimate capacity with reference to 
the taking of the amount provided for under the treaty on the 
Canadian side? 

Mr. Barton. They would take the entire 36,000 cubic feet. 

Mr. Sharp. Now, they are simply supplying it as they can find 
sale for it ? 

Mr. Barton. That is all. 

Mr. Sharp. They will build up to that demand as fast as it grows? 

Mr. Barton. Yes; I am speaking for the Canadian Niagara Co. 
when I say that, and I presume other companies are in the same 
position. 

Mr. Sharp. How many thousand cubic feet per second are they ac- 
tually using? 

jNIr. Barton. I have forgotten the exaft figures. They are all 
recorded in the reports. I think the Army engineei-s got those. 
I should sa}' somewhere in the neighborhood of 18,000 cubic feet per 
second — about half of the amount I should say. speaking roundly. 

]\[r. Sharp. Are vou in favor of the importation of this power to 
the United States?' 

Mr. Barton. Yes, sir. 

Mr. Sharp. Do you think any arrangement could be made whereby 
a fixed amount of poAver imported into this country could be given a 
definite lease of duration, so that with the increasing demand on the 
Canadian side it Avould again be diverted back to Canadian industry? 

Mr. Barton. I don't think that Avould be practicable, because 
Canada could at any time prohibit the exportation of the power, but 
I don't (hink there is much danger of their trying it. 

Mr. Si[ARP. So that it would be simply a question of getting a 
benefit that might Ix? temporary on this side? 

Mr. Barton. It might be temporary with this in mind, that if 
the power is once brought over here and is actually used in industries 
the Canadians would Ix? much less apt to say you shall stop bringing 
that power in than they would to say you shall not send over any more 
power than you arc now sending. I think it is a great advantage 
to get power over bore before It is preempted by Canadian industries. 



PBESEKVATION OF NIAGARA FALLS, 205 

Mr. Sharp. What company would get that power? 

Mr. Barton. You mean on this side? 

Mr. Sharp. On this side ; that was imported. 

Mr. Barton. So far as the Canadian Niagara Co. is concerned, the 
Niagara Falls Power Co. would take what was imported at Niagara 
Falls and distribute it to its customers there. 

Mr. Sharp. Have any of these companies, including your own, 
made any tentative arrangement with the Canadian company to take 
any imported power that would be allowed to come in on this side? 

Mr. Barton. You mean the American companies? 

Mr. Sharp. Yes. 

Mr. Barton. Not that I know of. 

Mr. Sharp. There is no understanding at all? 
. Mr. Barton. No. 

Mr. Sharp. How would that be regulated — have you given that 
fixing question any consideration as to how they would get that power 
for distribution ? 

Mr. Barton. I think that would be a matter of contract between 
the producing company and the distributing company. 

Mr. Sharp. With your equipment for distribution and that of the 
other American companies, it is quite likely that the existing com- 
panies would get that power imported? 

Mr. Barton. The existing distributing companies? 

Mr. Sharp. Yes. 

Mr. Barton. That would be the natural development, I should say. 

Mr. Sharp. Is it your opinion, after having given this subject much 
consideration, that there would be any such competition by the im- 
portation companies as would lower the rate to the ultimate consumer 
on this side of the water? 

Mr. Barton. I think the tendency to low^er the rate perhaps would 
not result so much from competition as it would from the increased 
volume of the product. Speaking of Buffalo, it is the only way I see, 
practically speaking, that Buffalo has any hope of getting a lower 
price for power is by increasing the volume of the power that the 
Cataract Power & Conduit Co. is enabled to sell, and that must be 
done by bringing it in from Canada. 

Mr. Sharp. How long would it take for the present demand for 
increased power on this side of the water to practically absorb all 
that would be imported? 

Mr. Barton. I think it would be much faster than it can be de- 
veloped. 

Mr. Dtfenderfer. The Ontario Power Co. is a Canadian corpora- 
tion, as I understand it? 

Mr. Barton. That is my understanding. 

Mr. DiFENDERFER. They supply — the Niagara & Lockport Co. is 
the transmitting company, is it not? 

Mr. Barton. That is my understanding. 

Mr. Dh^enderfer. Is there any connection between these two coni- 
]>anies that might be considered favorable one with the other ? 

Mr. Barton. I have no information. 

Mr. DiFENDERFER. Gen. Green is vice president of the Ontario Co., 
is he not ? 

Mr. Barton. I believe he is. 



266 presp:rvatiox of xiagaka falls. 

Mr. DiFENDEHFEiJ. That power is created on the Canadian side, is 
it not ? 

Mr. Bahtox. It is. 

j\fr. DiFEXDERFER. Isn'l lie president of the Niagara, Lockport & 
Ontario Co. ? 

Mr. Bartox. He is ri^rht here. T think that is the ease, isn't it. 
General ? 

Mr. DiFEXDERFER. If he is, that would show some close relation- 
ship, would it not? 

Mr. Bartox. It would indicate that to me. 

Mr. DiFEXDERFER. Tliis Xinijara-Lockport Co. is the distributing 
company for the Ontario Co., is it not? 

Mr. Bartox. That is my undei-standing. 

Mr. DiFEXDERFER. They take the product at the center of the 
river, as I recall the testimony given here. 

Mr. Bartox. I think that was the statement made. 

Mr. DiFEXDERFER. Froiii whom do they take it? 

Mr. Bartox. From whom does the distributing company take the 
power ? 

^fr. DiFEXDERFER. YbS. 

Mr. Bartox. From the Ontario Co. 

Mr. DiFEXDERFER. In the center of the river? 

Mr. Bartox. I don't know anything about it. I have nothing to 
do with that company. 

Mr. DiFEXDERFER. I tlioiiglit ])o>sil)ly you might know, being 
pretty closly connected. 

Mr. Barton. Only know as much as anybody about the place knows. 

]\Ir. DiFEXDERFER. Havo 3'ou any information regarding the Mc- 
Kenzie Mann Co., on the Canadian side? 

Mr. Bartox. The electrical development companj''? 

Mr. DiFEXDERFER. Yes. 

Mr. Bartox. I have some general information about it. 

]Mr. DiFEXDERFER. Do you know whj^ they refused to send this 
power to the United States under the agreement? 

Mr. Bartox. I think I explained that the other day. as far as my 
knowledge goes. They did distribute and sell some power to come 
into the United States for a period of three years. They had four 
generators installed and as their load in Toronto increased about a 
year ago they needed the power of all of those machines to supph^ 
their own load in Canada, so that at the termination of the three 
years' agreement tliev said that tliey didn't wish to renew it, and the 
importation was stopped. 

They are now putting in three additional machines, as I under- 
stand it. and an arrangement has been made by the Cataract Power & 
Conduit Co. and Electrical Development Co.. which is a practical 
renewal of that contract, so that as soon as one of these generators 
is started, they will be utilizing their permit again. 

Mr. DiFEXDERn-^R. You said a little Avhile ago that there was more 
than a gentlemen's agreement existing between your company and 
the distributing company. 

Mr. Bartox. We have relations with only one company in Buffalo. 

Mr. DiFEXDERFER. There Avas more than a gentlemen's agreement 
Avith that company that you had the contract with. That contract 
precludes your doing business as a distributing company in Buffalo? 



J 



PKESEKVATIOX OF NIAtJAHA FALLS. 26.7 

]Mr, Baktux. It does, in tlie way T ha\e stated. 

Mr. I)iFKNi)f:uFEU. Ivetiuii again to the Ontario company. 

Mr. Bautox. It is only fair that it shoukl. because we could ruin 
that company by going in there and competing with them. 

Mr. Clixe. Because you could produce it cheaper? 

Mr. Bartox. Because we control the whole thing. AVe could sell 
power for less than the cost, for example. 

Mr. Clixk. I wouldn't presume that you would do that. 

Mr. GooDwix. "Wouldn't the public be benefited? 

Mr. Bartox. liy the competition you mean? 

Mr. GooDAVix. By you. 

Mr. (tarxer. Refusing to sell them power. 

Mr. Bartox. Only temporarily. We couldn't sell it cheaper than 
they do because we would have to have the same investment. 

Mr. GooDWix. Replying to a (question by Mr. Sharp, did I under- 
stand you to say that the importation of Canadian power Avould 
have a tendency to regulate the price? 

Mr. Bartox. I said I lh(jught it would tend to produce a lower 
])rice by increasing the \olame. 

Mr. GoonwTx. In other Mords. the price would be governed some- 
Avhat by supply and demand. 

Mr. Bartox. Xo, sir; not exactly that. What I meant is, it is a 
general law that if you can produce a thing in larger quantities it 
can be produced cheaper per unit than you can by producing it in 
small quantities. 

Mr. GooDwix. But following that, you also said that you thought 
the consumption at least would be as rapid as the imi)ortation? 

Mr. Bartox. Yes, sir; that is true. 

]\Ir. GooDAVix. That there would not be much cheapening? 

Mr. Bartox. If the law of supply and demand were to hold sway 
there would be no cheapening. 

Mr. GooDwix. But having a monopoly, there would scarcely be 
any difference. 

iVIr. Bartox. These companies are all under the supervision of 
the public-service conunission. which watches those things very 
closely, and if it were shown at any time that their i)rofits were 
exorbitant, it would have to be reduced. 

Mr. DiFEXDERFER. I uoticcd the city of Buffalo has appropriated 
$35,000 to put them in a position to ask for those things. 

Mr. Bartox. I understand that is the case. Complaint has been 
made. 

Mr. DiFEXDERFER. If it requires that much to ask a question, how 
then can an individual have any hope in proponnding any questions? 
It seems to me as though it Avere rather complicated to reach that 
commission, 

Mr. Bartox. Any individual has got to prove his case. 

Mr. HARRist>N. I want to ask you if any directors of your company 
are interested in the distributing company that you have a contract 
with. 

Ml", Bartox, The company as a whole owns a controlling interest 
in the stock of the distributing company. It is different from the 
generating business. It is more convenient to oi-ganize the thing in 
that way. 



268 PRESERVATION OF NIAGARA FALLS. 

Mr, Ci RLEY. About Iioav imich property do you pay taxes on, either 
at Buti'alo or Niagara? 

Mr. Barton. AVell, we pay taxes on all of our property everywhere. 

Mr. CiRLEY. About how much? 

Ml'. Barton. At Niagara Falls last year the tax bill was $175,000; 
I can't give you the figures about the other companies. 

The Chairman. That was the local real and personal propert}^ tax 
to the city? 

Mr. Barton. Niagara Falls. 

The Chairman. A local tax to Niagara Falls? 

Mr. Barton. The city tax was about $130,000 and the rest was 
State and Federal income tax and one or two others. 

Mr. CuRLEY. A total taxation of $175,000? 

Mr. Barton. Yes. 

Mr. Ctrley. What ]n"oi)ortion of that was paid at Niagara Falls? 

Mr. Barton. All ])aid at Niagara Falls. $130,000. about, was the 
city proportion. 

Mr. CiRLEY. What is the tax rate there? 

Mr. Barton. The city tax rate is about 20 mills. 

The Chairman. You pay no franchise tax ? 

Mr. Barton. Yes; we have a franchise tax, also. 

The Chairman. Will you explain that, please? 

Mr. Barton. We occupy certain ]iropeii:y in the public streetvS at 
Niagara Falls with conduits and cables, and we are assessed on the 
valuation of that property and pay a tax to the city. 

The Chairman. The fact I desire to develop is that you pay no 
franchise tax for your permit to the Federal Government and no 
franchise tax to the State of New York? 

Mr. Barton. We furnish the State of New York all the power 
that is needed by the park commissioners for lighting, heating, and 
power in the State reservation of Niagara. We also furnish without 
charge all the water that is needed in the State park. 

Mr. Ci'RLEY. What is your figure for the total investment at 
Niagara Falls? 

Mr. Barton. $24,000,000. 

Mr. CuRLEY. Yet you pay at Niagara Falls, according to your 
statement 

Mr. Barton. Investment at Niagara Falls — I didn't understand; 
Niagara Falls in New York, our investment is $16,500,000. 

Mr. CuRLEY. You only pay taxes on about $6,500,000. 

Mr. Barton. That is, the real assessed value in the city of Niagara 
Falls is $6,500,000. 

Mr. CiRLEY. What other benefit does the business of the United 
States derive from the fact that these various companies that you 
represent other than the $175,000 that is received in taxation? Is 
there any other that you can think of? 

Mr. Barton. They get the benefit of the power at a very low rate, 
and power fosters and promotes industries. 

Mr. CuRLEY. Do you think a very low rate is a rate that is nearly 
three times as large as that which is charged in Canada for the same 
class of power? 

Mr. Barton. I think the rates we sell power at are low rates, and 
they are not three times the price of power as sold in Canada. 



PRESEKVATION OF NIAGARA FALLS. 269 

Mr. CuRLEY. I understood that in Canada they sell power for $1*2 
per horsepower and in Buffalo it is $36 according to the figures given 
here the other day. 

Mr. Barton. I think those figures are not comparable; in the one 
case you have power at a power house right as it comes from the 
generators at a high voltage, and in the other case you have the 
power delivered at the premises of the consumer after undergoing 
a process of transformation and distribution and through under- 
ground conduits. There is the tranformation sometimes three times. 
To compare those prices is about the same as comparing the ton 
price of pig iron with the price of nails per ton. One is the raw 
and the other is the finished product. 

]Mr. CuRLEY. Is there niore power sold on the Canadian side than 
on the American side of the Falls? 

Mr, Barton. Xo; there is less sold on the Canadian side at present. 

Mr. CuRLEY. Didn't you state a few minutes ago that the greater 
the volume of power the companies could produce the low'er the 
price at which they could distribute it ? 

Mr. Barton. I was referring then to the distribution cost mainly. 
The distributing company of Buffalo has a large investment in a 
distributing plant w^iich is capable of distributing more power than 
it is now distributing and I suppose that as that volume increases the 
distribution cost per unit will be reduced. The same thing applies 
to generating. If you have an investment in a plant of 100,000 
horsepower and only are turning out 50.000. you have got to pay 
fixed charges on the entire development on an income from the 
50,000 horsepower. 

Mr. Garner. Let me see if I get your statement correct. You rep- 
resent the Niagara Falls Power Co. ? 

Mr. Barton. Yes, sir. 

Mr. Garner. That generates the power? 

Mr. Barton, Yes, sir. 

Mr. Garner. Then you represent, rather the stockholders in that 
company represent, the transmission company that takes it to Buffalo ? 

yir. Barton. Xo; there is no separate company. The generating 
company transmits to Buffalo. 

Mr. Garner. Then the Niagara company owns the controlling 
interest in the distributing company in Buffalo. 

Mr. Barton. That is true. 

Mr. Garner. Then the company that generates the power owns the 
controlling interest in all of the companies up to the consumer? 

INIi'. Barton. No ; the lighting business is taken care of by a sepa- 
rate company. 

Mr. Garner. Now. the public-service commission of the State of 
New York has power to regulate your prices? 

Mr. Barton. It has. 

Mr. Difenderfer. Has it ever exercised that power that yoii 
know of? 

Mr. Barton. In our case? 

Mr. Difenderfer. Yes. sir; in any case. 

Mr. Barton. It has exercised it in some cases, but not as to our 
companies. 

Mr. Goodwin. Lowered the rate? 
28305—12 18 



270 PRESEP.VATTO>- OF XI AGAR A FALLS. 

Mr. Barton. Yes, sir. 

Mr. Goodwin. To what extent? 

Mr. Barton. I say lowered the rate; I am not speaking throiifrh 
my personal knowledge. I nnderstand the commission has investi- 
gated a number of cases and that in some cases it has reduced the 
rate. I can't give any case in which it has lowered the rate. 

Mr. Goodwin. Let us get back to the question of taxes paid last 
vear. Did vou sav the total taxes paid bv vour companv aggregated 
S1T5.000? 

Mr. Barton. That is the generating company at the city of 
Niagara Falls. 

Mr. Goodwin. That is the company that you are vice president and 
general nuinager of? 

Mr. Barton. Yes. sir. 

Mr. Goodwin. Did that SlTa.OOO include the amount of taxes that 
the Niagara Falls Power Co.. of which you are the general manager, 
has in the distributing company? 

Mr. Barton. Xo; they pay taxes l^esides that on their own prop- 
erty. 

Mr. Goodwin. The $175,000 was exclusive? 

Mr. Barton. Exclusive of the other company and also exclusive 
of our property outside of the city of Niagara Falls. We pay taxes 
in every bailiwick through which the transmission line passes. 

ISIr. DiFENDERFER. What is the assessed valuation of your property 
at Niagara Falls? 

Mr. Barton. Over $6,000,000. 

Mr. DiFENDERFER. The reasonable value you claim is $16,000,000? 

Mr. Barton. That is our investment in the city of Niagara Falls. 

Mr. DiFENDERFER. That is rather a low assessment, is it not? 

!Mr. Barton. As compared with other assessments at Niagara Falls 
it is higher than some others. 

Mr. Cline. Do you mean to say that the New York commission 
fixes the exact price, or does it fix a maximum price for you ? 

Mr, Barton. The public service commission? 

Mr. Cline. Yes. 

Mr. Barton. I understand tlint after investigating a given case it 
determines whether the rates charged are fair and reasonable, and 
if it concludes that they are not reasonable it reduces the rate. 

Mr. DiFENDERFER. ^AHiat do you mean by a given case? 

Mr. Barton. Any case brought to them by complaint. 

^fr. DiFENDERFER. Givc US the case. Is it one of your own? Who 
furnishes this case? 

iSfr. Barton. We have no reduction. The case Avould be furnished 
by the people who complain against the rate. 

Mr. DiFENDERFER. I Understand there are no individual com- 
plaints. 

Mr. Barton. In our case, you mean? 

Mr. DiFENDERFER. YcS. 

Mr. Barton. No; I was discussing a general proposition. 

Mr. Cline. T want to ask for information whether the commission 
fixes the maximum price that you charge or whether it fixes the iden- 
tical price at Avhich you should distribute power. 

Mr. Barton. It fixes a maximum. I don't think they prevent you 
from charging any lower rate. 



PEESERVATION OF NIAGARA FALLS. 271 

Mr. Sharp. In all cases that maximum rate is identical with the 
rate charged. 

Mr. Barton. I should think it would be. 

The CiiAiRrkiAN. Which company paid the larger amount of money 
for taxes to the city of Niagara Falls, the Niagara Falls Co. or the 
hydraulic company ? 

Mr. Barton. The Niagara P'alls Co. 

The Chairman. WhyT 

Mr. Barton. Because we are assessed at a higher valuation. 

The Chairman. Because it owns more real property in the city? 

Mr. Barton. That is the theoiy, I think. Most of it is on our 
plant, $5,000,000 is on our plant. 

Mr. Brown. By one or two questions I think I can bring out cer- 
tain information that the committee would be interested in. 

Mr. Brown. ]Mr. Barton, at what cost is the power on the Canadian 
side delivered to the Province of Ontario by their commission over 
there? 

Mr. Barton. $9.40. 

Mr. Brown. Now, at what price does the developing compaii}'^ de- 
liver power in bulk at, Ave will say, the limit of the city of Buffalo? 

Mr. Barton. That is, our company in one case. 

Mr. Brown. Yes. 

Mr. Barton. $16. 

Mr. Brown. In what manner is that power which is sold by the 
commission on the Canadian side at $9.40 — at what place is that power 
taken ? 

Mr. Barton. I understand it is at the generating station, the 
generated voltage. 

Mr. Brown. Who pays for the transmission lines, the cost of the 
transmission line to the point where it is delivered to the city. 

Mr. Barton. The hydroelectric commission. 

Mr. Brown. Included in this cost of $16 you get at the limits of 
the city of Buffalo, what is the difference in the conditions from the 
conditions at which power is delivered at $9.40 on the Canadian side ? 

]Mr. Barton. I think I can answer that best by stating the price 
quoted by the hydroelectric commission. 

]\Ir. Brown. What does your company do before you charge this 
$16 that is not done on the other side? 

Mr. Barton. The same thing, precisely. We step up to a high 
voltage and transmit it to the point of delivery. 

Mr. Brown. In other words, that cost of $16 includes transmission 
across the river from your poAver plant up the river to the city limits. 

Mr. DiFENDERFER. Supposc vou (lo uot take it from the Canadian 
side? 

Mr. Barton. The same thing; we step up and transmit. 

Mr. Brown. You transmit to the city limits of Buffalo? 

]VIr. Barton. Yes, sir. 

Mr. Broavn. What effect is that distance, as to AA^hether it is ex- 
pensive transmission ? 

Mr. Barton. TA\enty-tAvo miles on the Canadian side and 18 miles 
on the American side. 

We have tAvo separate pole lines Avith three separate transmission 
circuits. On the Canadian side Ave have Iavo pole lines with three 
separate independent circuits. 



272 PRESERVATION OF NIAGARA FALLS. 

^Ir. Brown. The difference here bet^Yeen the tAAO costs — that is, the 
cost to the Canadian side taken at the power house and the cost on 
the American side taken at the city limits — is approximately $6. 
Now, whether considering the extra cost of transmission, and the ex- 
tra cost for the investment for transmission appliances, is that a fair 
rate, is that extra $6 any more than necessarily reasonable to cover 
the difference in cost ? 

]\Ir. Barton. I don't think it is. 

Mr. Broavn. On the Canadian side the Canadian commission has 
taken this bulk quantity of power at the plant on the Canadian side 
and transmitted it to consumers. You have spoken about a place, 
Bridgeburg, where the Canadian commission transmits and delivers 
to consumers. 

Mr. DiFENDERFER. The hydraulic commission you have refernce to? 

Mr. Brown. I mean that. '\"Miat is that ? 

Mr. Barton. It is the hydroelectric commission. It does not trans- 
mit to Bridgeburg, but the business men at Bridgeburg asked the 
commission to quote them a price. Our transmission lines to Buffalo 
run through both of those villages. They wanted to get some power 
from us but they were afraid that we were going to charge them 
too much so they asked the Canadian commission for a price, and the 
price quoted by the commission was a sliding scale. The village could 
only use less than 100 horsepower to begin with. The commission 
said it wouldn't transmit less than 200 and the price quoted was 
$37.81 per horsepower delivered at the high tension in the village of 
BridgelDurg, and the municipality had to take the power and trans- 
form it and distribute it. 

Mr. DiFENDERFER. How far is Bridgeburg from the power plant? 

Mr. Barton. TAventy-two miles from Niagara Falls. We are sell- 
ing power at Buffalo at $16 under those conditions precisely. 

Mr. Brown. Take the retail price to the consumer that exists at 
Toronto, and that at Buffalo to the consumer. Generally speaking, 
how do they run? 

Mr. Barton. I understand the rate established by the hydroelectric 
conmiission for power in Toronto in some cases is lower than the 
Buffalo rate to consumers, and in some cases they are higher. Taking 
the rates of the Cataract Power & Conduit Co. as a whole. I am told 
that the application of the Toronto rate to customers would result in 
a substantially larger income to the distributing company. 

Mr. DiFENDERFER. The hydroelectric connnission. as I understand 
it, transmit their power for $12. do they not. a horsepower, in some 
instances? 

Mr. Barton. I think for less than that in some. 

Mr. DiFENDERFER. Well. I am taking $12 as a maximum. 

Mr. Barton. The maximum cast or selling cost? 

Mr. DiFENDERFER. The selling cost — $0.40. AMiat they get it for. 

Mr. Barton. I don't know of anv case in which thev are selling for 
$12. The price at Toronto, I understand, is about $18. that is, the 
transmission price. 

Mr. DiFENDERFER. ToFonto. what is the distance? 

Mr. Barton. About 90 miles. That is not the price 

Mr. Brown. Is that the price to the city line or the price to the 
consumer ? 

Mr. Barton. At the city line. At transmission line Aoltage. 



PRESERVATION OF NIAGARA FALLS. 273 

Mr. Broavn. How far is it from Niagara to Buffalo? 

Mr. Barton. Twenty-two miles. 

Mr. DiFENDERFER. They charge the same price for 90 miles as you 
do for 22. 

Mr. Barton. Their price is $18, our price is $16. 

Mr. DiFENFERFER. Two dollars difference. 

Mr. Barton. Two dollars difference, in our favor. 

Mr. Brown. State generally, so that the committee may have an 
idea, since your company and these other companies were furnishing 
power in Niagara Falls, Avhat has been the development in indus- 
tries in that city under the price at which you furnish power? 

Mr. Barton. I would say that the population of the city of 
Niagara Falls has grown from 1890 up to the present time from about 
8,000 to about 35.000, and that has been entirely due to the develop- 
ment of power at Niagara Falls. 

Mr. DiFENDERFER. At Niagara Falls, you speak of? 

Mr. Barton. Yes. sir. 

Mr. DiFENDERFER. Aloiie ? 

Mr. Barton. Alone. 

Mr. DiFENDERFER. Isii't it a fact that the Hj'draulic Power Co. 
have that as their territory? They do not distribute to any other 
point than that particular point, 

Mr. Barton. That is true. 

JNIr. DiFENDERFER. Is there competition there? 

Mr. Barton. There is. 

Mr. DiFENDERFER. Betwceii your company and the other company? 

Mr. Barton. There is. 

Mr. DiFENDERFER. Do vou cliai'ge any less there, or do they charge 
iiny less than you ? 

Mr. Barton. I don't know what their prices are. 

]\Ir. DiFENDERFER. Or are they the same? 

Mv. Barton. I don't know what their prices are; I have no infor- 
mation. 

]Mr. Brown. It has been stated by the statistics that from about 
1900 to about 1904 or 1905 the value of manufactured output by 
industries at Niagara Falls increased from $8,500,000 up to $16,- 
900.000. Have you statistics showing what the increase was in the 
value of output bv these industries between 1904 and 1909? 

INIr. Barton. Increased to $28,600,000. An increase of about 80 
per cent in five j^ears. 

Mr. Broavn. I understand the consumers complained in regard to 
j-ates for the New York commission— that is, by the consumers, they 
have to be signed by 100 consumers. 

]\Ir. Barton. That is my understanding. 

Mr. DiFENDERFER. "\Yho makcs that rule? 

Mr. Broavn. Do you knoAv of a complaint being made and signed 
by 100 consumers? 

]\rr. DiFENDERFER. Is that the commission rule? 

Afr. Barton. That is the rule. 

I might say in regard to that there has recently been served on 
the Cataract PoAver Co. and on us — it has been stated in Buffalo the 
customers of a distributing company could not serA-e a complaint on 
a generating company. That may be the laAv, but a complaint has 
been served on us. We haA-e been notified to mxe an ansAver within 



274 PRESERVATION OF NIAGARA FALLS. 

20 days. That complaint was signed by 150 citizens of Buffalo, and 
ont of those three Avere customers of the Cataract Power & Con- 
duit Co. 

Mr. Brown, AVho Avere the others ? 

Mr. Barton. I don't know. 

Mr. BROAyN. They AAcre not consumers? 

Mr. Barton. Xot consumers. 

Mr. Broavn. Customers of the lighting company ? 

Mr. Barton, I think they were. 

A Member. May I ask if any of the stockholders of your company 
are interested in that company ? 

Mr. Barton, I can't say. but I think some persons there are inter- 
ested in both comi^anies. 

Mr. DiFENDERFER. They are interested in all of those companies, 
are they not? Possibly that is your answer to there not being a 
gentleman's agi'eement. That may be your answer to that proposi- 
tion. It isn't necessary. 

Mr. Barton. Why should there be a gentleman's agreement? Is 
there anything that is secret ? The whole thing is oj^en and aboye 
board. There is a lighting company- doing business there. They 
Avere there, and there is no reason Avhj^ we should duplicate their 
inyestment. 

Mr. Cline, Then those Ayho haA^e these other two companies — 
members of your company that have an interest in these other tAvo 
companies you speak of — also share three different profits, do they 
not? 

Mr. Barton. I presume that is the case, but three different profits, 
each of AA-hich represents a different inyestment. 

Mr. Broavn, Has the Niagara Falls PoAAer Co. or the Cataract Co 
any controlling interest in this electrical company, the lighting 
company ? 

Mr. Barton. None Avhateyer. 

Mr. Broavn. The common interest is simply the result of accident 
that one stockholder may hold some stock in both. 

Mr. Barton. It came about in this Avay : When the Niagara Falls 
PoAver Co. AAas organizing a distributing company in Buffalo, the 
lighting company Avas asked whether it Avanted to buy all this poAver 
that Ave Avere going to furnish to Buffalo, and it decided it Avouldn't 
take the risk. . Its directors thought it Avasn't Avise to inyolvc the 
property of their shareholders in that project. But one or tAvo of 
the gentlemen interested in the lighting company took the matter up 
and undertook to organize a local distributing company in Buffalo, 
and that Avas done. 

Mr. Broavn. State. Mr. Barton. Avhat has been the dividends paid 
by the Niagara Falls PoAver Co. doAvn to the present time. 

Mr. Barton. In 22 years the company has paid eight dividends of 
2 per cent each. 

Mr. DiFENOKurER. What are the salaries of the gentlemen Avho are 
interested in this — then Ave Avill come nearer the profit^ 

Mr. Barton. They are inadecjuate. I should say. They are on 
record in the files of the public-.service commission, if you are in- 
terested. 

The CiiAHOiAN. I received a telegram from the Rev. Dr. Lyman 
Abbott, editor of the Outlook. If there is no objection it will be 



PBESEKVATIOX OF 2CIAUAKA FALLS. 275 

read and incorporated in the hearings. The telegram reads as fol- 
lows : 

Xkw York, January .?.5. 1012. 
Hon. William Sulzer, 

Chalrmuti House Ooiiuuittec on Foreii/n Affaira, Washington. D. V.: 
May I urge upou you favorable consideiatlDn of the joiut resolution for the 
extensiou of the i)rovisioiis of the Burtou Act for the preservatiou of Niagara 
Falls? I believe that (Vjiigress shouUt take this action for three reasons: 
First, Congress has already deereed that Niagara Falls shall be preserved by 
the Federal Goverunient : second, the report of the Army engineers has shown 
that the Falls are already injured and are in danger of further injury : third, 
the Burton Act has proved itself an effective instrument for the protection of 
Niagara. 

lA'MAN Abbott. 

STATEMENT OF PROF. JAMES HENRY HARPER. 

The Chairman. Mr. Harper, yoti may proceed. 

Prof. Harper. I do not represent anv interest in this large ques- 
tion, except the 90,000,000 people in the^Tnited States. 

I want to contribute, if I can, a little light to the subject of the 
preservation of the Falls. As a preliminary proposition, I believe 
3'^on have some pictures here showing the run-off of the Falls at the 
time when it was the low^est rainfall Avithin the lifetime of any indi- 
vidual present. I want to make that very prominent. 

We are passing just at the present time the crest of a drought 
greater than that within the knowledge of any man living here or 
likely to be. These ])eriods of minimum rainfall occur largely and af- 
fect largely the interior, and consequently have a very pertinent effect 
upon the flow of the >yiagara Falls, because it is entirely the drainage 
of the table-lands in the territory back in the interior that the Falls 
depends upon for their Hoav. 

With that I have been preparing some figures on this, the history 
of the rainfall and the drought, which will be published, I suppose, 
but I want to state that we have just passed or are passing that 
period of three years of maximum drought. This is the crest of 
that period, and that will not occur again within the lifetime of any 
individual here. 

The Chairman. Has the rainfall, so far as 3'OU have been able 
to find out, increased or diminished along the Great Lakes for the 
past ()0 years? 

Prof. Harper. The rainfall has necessarily decreased because we 
have cut away nature's sponge, the diminution of the timber supply 
around that area has been the largest factor, and the prime factor 
ill the diminution, if there has been any. the rmi-off at the Falls. I 
have no interest in them, nor do I hold any briefs for a power com- 
pany of any kind. 

The Chair:man. Is it your oli^^ervation that the Great Lakes are 
receding ? 

Prof. Harper. Not at all. The rainfall period will determine the 
volume of run-off and the very fact that there are some large im- 
poundments of water and large power development which -20 years 
ago were not in evidence at all in that territory, has contributed 
materially to a bettering or steadying this flow of Niagara. As a 
matter of fact the power development that Niagara now has con- 
tributes to the flow of Niagara. The power development and the 



276 PRESERVATION OF NIAGARA FALLS. 

impoundment of water in those areas has helped to relieve the situa- 
tion that the cutting off the timber has brought about, and the more 
power development, the larger im])Oundment of water taken care of 
at the low stages. In other Avords, the larger power development 
that takes place back of Niagara Falls the steadier will be the flow 
of Niagara P'alls. It is only during the low period that people are 
talking about the preservation of the Falls, or an3'one else is inter- 
ested. The run-otf wouldn't be reduced in inches appreciabh' if 
there were to be another 20,000 feet of water taken there. 

Mr, Sharp. Do you claim that the cutting away of timber di- 
minishes the rainfall? 

Prof. Harper. Certainly not, only the rainfall, not only the 
natural precipitation, but it immediatel}' puts that water on its way. 

Mr. Sharp. I understand that, but in what way does it diminish 
the actual precipitation, the cutting away of the timber? 

Prof. Harper. That would call for quite an extended observation, 
but in simple terms anything that destroys the sponge, nature's 
sponge for the retention of that rainfall, affects the run-oft'. 

Mr. Sharp. I understand that, but what 

Prof. Harper. The cutting off in timber has brought about a 
lessening in the carrjdng power that is within the basin, we Avill say, 
of these Great Lakes, and a lessening of the precipitation, and it 
has thrown the precipitation closer to the coast line. Our precipita- 
tion here in AVashington will be sustained and at times in New York 
during the crest of this drought the precipitation in New York was 
l^henomenal. but that was the result of the precipitation being car- 
ried farther inland in drought periods. Nature proved that. Dur- 
ing a number of years the precipitation has been nearer to the coast 
line. And that is a sort of a balance. Nature provides for that. 

Mr. Sharp. Doesn't it diminish the precipitation from the clouds, 
the cutting away of the forests^ I can understand how the forest 
acts as a sponge and retains the moisture and that it doesn't flow 
away so rapidly, but I Avould like to know how it interferes with 
the amount of precipitation, because I understood that there is a 
good deal of controversy on that subject, and I would like to get 
your view of just Avhy that action takes place. 

Prof. Harper. There is a wide difference of opinion even among 
the scientists on that subject, but I might give you an opportunity 
to speculate a little bit on that subject by stilting some conclusions 
that I have arrived at myself in dynamics, which govern prinuirily 
the periods of greater and lesser precipitation. 

The sun, which is our center of energy, is a large magnetic nuiss, 
not in combustion, and bearing no relation to the ancients of the 
fiery furnace, but simply a magnetic mass. That source of energy is 
magnetic, entering our sphere and causing the phenomena of light- 
ning and the extreme local phenomena of caloric energ}'. The 
caloric energy determines the rainfall and the growth of plant and 
animal life. That is the basis of some research work that has been 
going on on my part for over a third of a century, and the basis 
of the prediction on my part that we were to pass through a drought 
l)eriod by reason of the occurrence of the sun spots. I made some 
mathematical calculations of that. 

I had a photograph made of the sun spots and discovered that we 
would have a diminution, possibly, mathematically determined, per- 



PRESERVATION OF NIAGARA FALLS. 277 

haps as high as 5 per cent of the sun's energ}'. That brings about a 
drought period. That controls the whole operation. 

Mr. Sharp. So the existence of sun spots has to do with disturb- 
ances of the atmosphere? 

Prof. Harper. Not only the atmosphere, but seismic, pestilence, 
drought, famine, and others. 

Mr. Sharp. The sun spots, you think, were the primary cause? 

Prof. Harper. Yes, sir; and some others. 

Mr. Sharp. AVhat relation has the lessening of the forests to the 
production of sun spots? 

Prof. Harper. Now jow have got a subject that is large enough 
for ■ 

Mr. Sharp. I studied it myself for 30 years, and I think I know 
something about that question, and I was curious to get your views 
on the same. 

Prof. Harper. You had got enough to make deductions that any 
good mathematician could make and our good astronomers. Scien- 
tists have really accepted that theory. 

Mr. Sharp. Professor, I don't think I will take issue with you 
on the connection of the suti spots with the phenomena that we see 
here, but I have long been of the opinion that the mere cutting 
away of the forests has very little to do, if anything, with the actual 
precipitation and the moisture: not with the holding it back, but 
that the cutting away of the timber lessens the precipitation and the 
moisture it would seem to be rather a far-fetched conclusion. 

Prof. Harper. It does really lessen it 

INIr. Sharp. There is some doubt that it has anything to do with it 
at all. 

Prof. Harper. Not to my mind. I think if you follow my 

The Chairman. Now, Mr. Harper, to get down from sun spots to 
this mundane sphere, will you tell us what you have got to say about 
this legislation pending before this committee? 

Prof. Harper. I thought that statement to you. gentlemen, that 
the relation of the scenic beauty of the Falls to the present employ- 
ment of water for power Avhich has been carefully determined by 
ver_y good and competent engineers — the run-off can be had without 
any apparent effect upon the Falls, and as I have endeavored to 
show, and which is deducible to mathematical terms at the present, 
there has been an extreme diminution of rainfall on the table-lands, 
and the scenic beauty of the Falls during the year just past hasn't 
been materially affected. The feAv thousand or more feet run-off 
that is called for by the bill wouldn't have any effect at all. 

I desire to speak further upon the proposition of the impoundment 
of water. George AVashington had a plan for impounding in largo 
basins the water of the Potomac River, and he proposed slack-water 
navigation for two purposes — for power and navigation and for con- 
trol — it is one of the most intelligent briefs on the subject that we 
have got, including the best of our engineers for a hundred years 
since. 

The Chairman. Now, George was a great man. 

The committee will now take a recess until 2 o'clock, and the hear- 
ings will be closed this afternoon. The committee has been very 
patient and courteous to all of the gentlemen who have come here, 
and we have tried to give you as much latitude as possible to get 



278 



PRESERVATION" OF NIAGARA FALLS. 



your view on the legislation which is before the committee. This 
committee is very busy, and we must close these hearings this after- 
noon. AVe Avill go on from 2 o'clock until 5. three hours, and I hope 
you gentlemen Avho want to be heard will get together and agi'ee 
about how much time you Avant. 

Mr. CuKi.Kv. I Avas going to ask that a part of the report compiled 
by Dr. McLaughlin in his report, on page 47, be included in his re- 
marks, that portion relative to distriliution of typhoid fcA-er in the 
State of New York. 

fiEOGRAPinC.VL DISTRII5UTI0N OF TYPHOID IKVER IN THE STATE OF NEW YORK. 

In the cities of New York State with yood water supplies the t.vph(»i(l <le:itli 
rate is low. as shown by the following table: 





Cities. 


Rate per 100,000 of 
population. 




1909 


Average 
for to 
years. 




12.7 
8.6 
11.1 
13.1 
1.5.8 
11.1 
11.9 
.0 


17.0 




13.7 




14.8 




20.9 




17. .1 




18.5 




. 18.6 




17.1 









On the otlier hand, those cities usinj.' untiltered water from contaminated 
rivers have a hisli tyiihoid rate: 



Cities. 




Source of supply. 



Niagara Falls 

( 'ohoes 

Lockport 

Oswego 

Ogdcnslnirg 

North Tonawanda 

Tonawanda 

Rome 



Niacara River. 

Mohawk River. 

Erie Canal and recently Niagara River. 

Oswego River 

Oswegatchie River. 

Niagara River. 

Do. 
Mohawk River until 1909, now Fish Creek. 



Thereupon, at 12 o'clock, 
o'clock p. m. 



the committee took a recess until 2 



PRESERVATION OF NIAGARA FALLS, 279 

AFTER RECESS. 

The eomiuiltee reconvened, pursuant to the taking of recess, at 
2 o'clock p. m. 

STATEMENT OF RICHARD B. WATROUS. 

The Chairman. Mr. Watrous, you can proceed. Do you want ta 
put that document in the record as part of your remarks? 

Mr. Watrous. Yes, sir. As part of the remarks of Mr. McFar- 
land. 

Mr. Cliairuian and gfiuleuu'ii, by reason of the fact that we have had access 
to House Document No. 24G, only after the closing of the hearing held on 
Tuesday last, we find it necessary to present to you, in summarized and easily 
understandable form, the exceedingly important information contained in that 
document, entitled " Preservation of Niagara Falls," which has a vital bearing 
on the legislation l)efore you. 

1. In this document there has been collected and presented for the first time, 
by the engineers of the lake survey, iiuthoritative information to show exactly 
the conditions prevailing at Niagara Falls up to the comparatively recent date 
of June, 1911. On pages 15 and l(j of this Document 246 are given details as 
to power produced from Niagara water, on both sides of the international 
border. 

It appears that the two power plants operated on the United States shore 
were producing in June, 1911, a total of 165,010 electrical horsepower, and that 
the three power plants operated on the Canadian shore were producing, at 
the same time, 133,000 horsepower. The aggregate represents a total produc- 
tion of 298,010 horsepower, from water abstracted from the glory of Niagara, 
as of June, 1911. 

It further appears that while of this total there is produced on the Canadian 
side nearly 47 per cent, the use of Niagara-generated electric power in Canada 
is but 16.6 per cent of the total production. 

That is, th three Canadian plants (two of them owned and operated by 
citizens of the United States) make nearly half of the total power taken from 
the glory of Niagara, but sell for use in Canada barely one-sixth of the total. 
In fact, it is probable that but one of the so-called Canadian plants — and that 
the smaller one — could operate upon the load furnislied within the Province of 
Ontario. Thus the nuieh-vaunted increase in Canadian manufactures, said to 
have been l)rought about by the availability of electric power, proved before 
your committee on Tuesday last to be obtainetl at barely half tlie price charged 
consumers in Buffalo for the same i)owcr, has amounted to but 49,500 electrical 
horsepower. 

it is interesting in this connection to call your attention to the prospectus 
of the hydroelectric power conmiission of the Province of Ontario, which in 
its first report, published April 4, 1906, says, on page 7 : 

•• I'hey are satisfieil that a market for at least 50,000 horsepower could be 
obtained within a reasonable radius of Niagara Falls as soon as transmission 
lines can be constructed, and this could be increased to at least 100,000 horse- 
power within five years thereafter." 

The actual develoimient. concerning which the Canadian company, most 
desirous of sending increased power into the United States, lias given you 
alarming reports, has not proved equal by any means to the oi)tomistic view 
had of it in 1906. 

It is obvious that it is the practically unrestricted and completely doubled 
prices charged cimsumers in the United States that have made the American 
producers of power in Canada so anxious to have your connnittee aid in ex- 
lending, at 100 per cent advance, the beneficie'nt opportunity to further deplete 
tlie l)eauty and impressiveness of Niagara Falls, from which effort they are 
now restrained by the provisions of the Burton bill. 

2. It is in point to call your attention to the fact that at the average prevail- 
ing efficiency — namely, 12 electrical horsepower per cubic foot of water taken 
from Niagara Falls— the combined treaty diversion would produce 072,000 
horsepower. This is more than doulde the production as reported in House 
Document 246. which document, on page 13, again reiterates the conclusions 
of all the engineers who liave impartially studied this problem, to the effect 
that— 



280 PRESERVATIOX OF NIAGARA FALLS. 

" The artificial diversions of the power companies have materially added to 
the injury or interference with the scenic gi'andeur of Niagara Falls. Addi- 
tional diversions now contemplated will increase this damage." 

The increase to the treaty permissions, which are in no sense obligatory, 
would mean the development of two and one-quarter times as much power at 
Niagara Falls as was being developed there in June, 1911, and it is not im- 
proper to assume that interference with the scenic integrity of Niagara Falls, 
which it was the plain and only purpose of article 5 of the Canadian treaty to 
preserve, would be in that proportion. Again we quote from page 12 of House 
Document 246 : 

" On the depth and volume of flow over the cataracts, and on the continuity 
of the crest lines * * * depend largely the character of spectacle that it is 
desired to preserve." 

3. On page 16 of House Document 246 may be found significant data on the 
prevailing efficiency of the use of the water by all the power plants operating 
at Niagara Falls. Taken into account with the admittedly deficient operating 
heads now in use. the efficiency is given as but 63 per cent, or not two-thirds of 
the available ])ower which might be obtained. 

But fin the basis of using the full 220-foot head which is said to be practicable, 
the total efficiency of all the plants is but 48 per cent, or less than half that 
suggested as possible. 

As we had the honor to insist on Tuesday before your committee, the water 
of Niagara is precious water ; it belongs to all the world and is of immeasurable 
value, both from the scenic, the patriotic, the financial, and the conservational 
points of view, to the people of the United States and Canada. Every foot 
abstracted from the productive and God-given glory of the Falls ought to be 
made to produce the utmost possible amount of power, and not the easiest 
possible amount. 

So long as the companies producing power at Niagara Falls are found by 
impartial Government engineers to be operating under an efficiency of only 48 
]ier cent, it is respectfully, but insistently, urged that they have absolutely no 
right to ask for further diversions, depletions, and injuries to this, our principal 
American scenic asset. 

4. The specious character of the plea made for the free and unrestrained 
admission from Canada of power protluced there, we have outlined to you. 
AAMth the known fact that the three large companies operating in the United 
States and in Ontario draw from the upper pool, equally depleting the whole 
cataract, and that the two remaining com])anies draw directly and entirely 
from the much endangered Horseshoe Fall, which is as much American as 
Canadian, we are confident that no member of this committee will be found to 
assume that it is a matter of indifference as to what Canada may do — when 
the doing in Canada is by American citizens, and so ovei-whelmingly for possible 
American consumption. 

The guilt of the Federal Government is as great in respect to the proceeding 
destruction of the glory of Niagara Falls for every horsepower admitted from 
Canada as for every horsei>ower de\eloped in the TTnited States. 

It is fiu'ther obvious that if iiroper restraint is had upon the importation 
of electrical jiower from Canada, it will be many years before the damage will 
become more serious. With loss of ."lO.OnO horsepower in use now of the 432 000 
horsepower it is expected to produce under the treaty diversion on the Canadian 
side, there will be time for sentiment to form in Canada, which will inevitably 
be formed and will prove as effective in demanding the scenic preservaton of 
the Falls as it has so far proved in the United States. 

Gentlemen, if you so act as to hold down the spoliators of Niagara to the 
r.mounts which liave been given them to protect their investments, with a fair 
profit to all enteri)rises going at the time the will of the people was manifested 
in the United States, you will be doing justice, and full justice, to every honest 
interest represented, and respecting as well the overwhelming desire of the 
American peojile to have, see, enjoy, and hold in reserve, no further damaged, 
the scenic ulorv of Niagara Falls. 



Kespectfully submitted. 



Amkrkax Civic Association, 
Hy .7. Horace McFarland. President. 
RiniARD H. Watrous, Secretary. 



Mr. Watrous. Followino- Tuesday morning, when we adjourned. I 
might say, Mr. Chairman, that this statement is a paper presented 



PEESERVATIOlSr OF NIAGARA FAIvLS, 281 

upon the rending by Mr. McFarland of the latest report returned to 
the House — Document No. 24G, which inchides the figures of diver- 
sion up to the expiration of the present bilL 

I would like to ask, Mr. Chairman, if you have any knowledge 
when the committee is going to have the benefit — when this is going 
to be delivered to you? 

The Chairman. We expect to close the hearings to-day. Just so 
soon as the reporters can have the minutes transcribed they will be 
corrected by the various speakers and sent to the Public Printer. 

Mr. Watrous. You expect, of course, to use these documents? 

The Chairman. Yes. 

Mr. Cohn desires to be heard further. 

Mr. CoiiN. The statement was made here that the companies at the 
present time are utilizing but 13,800 cubic feet of water. That state- 
ment was based upon a report of some officials of the War Depart- 
ment made in June, made as on June 11, in which it was stated that 
the Niagara Falls Power Co. was using 7,870 cubic feet of water per 
second, whereas it has a permit for 8,600 cubic feet ; that the hydraulic 
company was using 3,350 feet per second, whereas they were allowed 
6,500 feet, and the other company was using 400 feet per second^ 
whereas it has a permit for 500 feet per second. 

The suggestion was made, I think by Eepresentative Cooper, that 
that might have been with the same purpose. That the full amount 
was not used as that other company could not under the existing 
law get any power beyond 16,600 cubic feet, although the law allowed 
the Secretaiy of War under certain conditions to grant permits in 
excess of those, either under the Burton bill. I wish to say there is 
no such purpose on the part of anj'one that the use of the water is 
fluctuating, and that permits in excess of 16,600 cubic feet, the extent 
of the bill, they must, under the terms of that act, be granted to the 
existing companies. I just state that to answer any argimient of 
that character. 

I wish to say, in the second place, that our company, the hydraulic 
company, has at no time professed to waive its common-law riparian 
right, or the rights under its grant from the State of New York, 
but it accepts the permit from the Secretary of War because the whole 
subject of permits under the Burton bill was assumed to be a tem- 
porary affair. 

The third statement I wish to make is in respect to one matter this 
morning, with reference to the water of the Niagara River, that was 
used for domestic purposes at the city of Niagara Falls. 

The city of Niagara Falls is now installing and will have completed 
by June a suitable filtration plant so that the question of the water of 
the Niagara River used for domestic purposes does not enter into 
this affair in any way. I would like to have the chairman call upon 
the representatives of the War Department present to give the actual 
user in cubic feet per second of water for power purposes by the 
companies, according to its last report. 

The Chairman. Mr. BroAvn, is there anvthing further you desire 
to say? 

Mr. Brown. Nothing orally, Mr. Chairman, except possibly this, 
that the position of the Niagara company is the same in regard to 
this last matter stated by Mr. Cohn for the hydraulic company. We 
took the permits as a temporary matter, never having waived our 
right, and as said here the other day we have called your attention 



282 l^RESERVATIOX OF XIAOABA FALLS. 

to our legal rights, not for the purpose of telling you what we are 
going to do, or what you have got to do, but ju^t to emphasize the 
equities that should be considered in our favor. 

Under the chairman's permission given the other day, I shall ask 
at the close of these hearings to file a brief summary, including pos- 
sibly answers to propositions that have been made as they occurred 
to me. 

Mr. Garner. Supposing that Congress should decide not to permit 
any water to l)e talcen out of the Niagara River on the American side 
on the ground that it injures navigation, and upon an investigation 
of the facts the courts should determine that it did not injure naviga- 
tion, although Congress on that ground refused to permit water to 
be taken from it. AVhat would be the residt of a contest in the 
courts? Or, in other words, if I may put the question in this way: 
If Cong-ress should find that it Avould injure navigation to permit 
20,000 cubic feet per second to be taken, and by legislation should 
prohibit any portion of it to be taken, and you siliould go into the 
courts and contend that the findings of Congress were erroneous and 
establisli that fact to the satisfaction of the court, that it did not in- 
terfere with navigation, would you still be entitled to take 20.000 
cubic feet per second? 

Mr. DiFEXDERFER. Under the treaty. 

Mr. Browx. In the first place, let me say if I could predict always 
what tlie findings of the court would be. the function of a lawyer 
would be done away with. 

It is the uncertainty in the solving of these problems in these mat- 
ters before the courts, that we help to bring about a solution. I could 
not predict, sir, what a court Avould say, and I can only say what in 
my opinion they ought to say and what I would advise a client they 
ought to say under the law as I see it to be. 

in that comiection I would say to my client that the United States 
Supreme Court has already held in the drainage case in Two hundred 
United States that legislation by Congress where it attempts to limit 
private rights, where it tends to usurp private rights, the functi(m of 
Congress in legislating or limiting upon personal or private rights, 
is stated by the United States Court that the exercise of such powers 
must have a " substantial relation to the public objects which the 
Government may legally accomplish.'' and further on the court says 
that the exercise, or attempted exercise, of any power by the United 
States Government — or any Government in these matters — must not 
be " arbitrary or unreasonable, or beyond the necessities of the case." 

Those are from the United States Supreme Court in Two hundredth 
United States. On the same principle I should also (piote to mj' 
client as laid down by the State of Xew York in a Niagara decision, 
where they say "not even a State has the liberty to interfere with 
the riparian rights of the relator arbitrarily, but such interference, 
if attem))ted, must be in the interest of some substantial right of the 
State affected by the exercise of the rights of the riparian to the use 
of the water of the river." (70 App. Div., 543.) 

Such principles as that I should present to my clients and advise 
them that they had rights which would be jirotected in the courts. 

Mr. DiFEXDERFER. At that point — supposing there was a tribu- 
tary branch, we will say, a river supplying a navigable stream, 
would a company have a right to dam up and divert that water, or 



PRESERVATION OF NIAGARA FALLS. 283 

could the United States Government prohibit them from doing that 
thing? 

Mr. Brown, To get the question clear, Mr. Difenderfer, you mean 
by diversion to divert it away and have it returned to the stream? 

Mr. Difenderfer. Never returned to the stream. The Govern- 
ment would have a right. Avould it not, to interfere in a case of that 
Jcind ? 

Mr. Brown. Not only the Government, but every riparian owner 
below, because under the law when a man diverts water from a 
stream — and the same principle applies whether it is navigable or 
unnavigable — makes any substantial diversion — he must return it 
to the river. If by not so returning it the lower riparian owner 
suffers, or if the public suffers, they each and both have a remedy. 

Mr. Difenderfer. I believe there is a Rio Grande decision of the 
United States. 

Mr. Cline. There is a Colorado decision, too, on that point. 

Mr. Brown. Yes, but you must remember that the Colorado de- 
cision and in some respects the Kio Grande decision are decisions 
which are not based upon riparian rights. The decision there is 
based upon what we call the law of '' prior appropriation," that if 
anj' man goes in upon a stream and diverts the water, and carries it 
away for irrigation for instance, he does not have to return it, and 
he gains a prior right over every subsequent user, whether that sub- 
sequent user be a riparian or any other person. That laAv exists in 
Colorado. 

It is for the same reason that the decision read by Mr. Watrous, 
the Colorado decision, is all right in its place, but it does not apply 
here. That Colorado decision read the other day is where a man 
upon a stream had a waterfall which was attractive, and he had 
used it in beautifying and developing his place, his summer resort. 
Afterwards, somebody above tried to divert some of the stream. 
The scenic-beauty man said that he had appropriated this fall as a 
part of the beauty of his j^roperty and he claimed it by prior appro- 
priation. A subsequent man can not get rights against him. and the 
courts sustained him. 

Mr. Cline. I don't Mant to make this tedious. Do you claim that 
your company is now seeking to exercise all the rights conferred 
upon them as riparian owners by the common law of the State of 
New York, or haven't they submitted some of those rights to the 
jurisdiction of the Secretary of War, or the jurisdiction of the com- 
mission of the State of New York ? 

Mr. Brown. In answer to your question, sir, speaking for the 
Niagara compan}', we have rijjarian rights, vested property rights, 
beyond the extent that they have been exercised under any permits 
or as measured by any permits from the Govermnent. Temporarily, 
and having regard for scenic beauty, they have submitted to pro- 
visions which have limited them to a certain use which is less than 
their legal rights. 

Their taking the permits from the Government did not in any 
way constitute a submission of their rights to what is claimed — the 
right of the Government to dictate under the present law. They 
simply submitted as a temporary matter. For instance, our com- 
pany had a capacity already developed, which required, for an eco- 
nomical operation, 10,000 cubic feet a second. The present law 



284 PRESERVATIOX OF NIAGARA FALLS. 

jimited that to 8,000. They submitted to that onh' as a temporary 
submission, until the thing should be adjusted, and we want to claim 
our ri<i-ht to have the use of 10,000 cubic feet. We don't expect you 
to fix that in detail, but expect that to whatever bod}^ you leave that 
to we uuiy show our equities that that body may have the power at 
least to consider them. 

In the same way, the hydraulic company needs 3,000 more in order 
to develop full capacity by operating at what will be a normal point 
of economy, and I say for them that the^' ought to have their 3,000. 

STATEMENT OF MR. PHILIP B. BARTON— Resumed. 

Mr. Harrison. When was the Cataract Co. organized? 

Mr. Barton. About 14 years ago. 

Mr. Hakkison. About 1898? What was the organized capital at 
that time? 

Mr. Barton. It was in 1895 or 189G it began business, I think. 

Mr. Harrison. What was the capitalization? 

Mr. Bar'TON. The present capitalization is $2,000,000 stock and 
something under a million dollars and a half in bonds. 

Mr. Harrison. What was the original capitalization of that com- 
pany ? 

Mr. Bar'TOn. Authorized, you mean? 

Mr. Harrison. No, sir; paid in. 

Mr. Barton. I can't give you that. 

Mr. Harrison. I understood j'ou to say this morning that a ma- 
jority of the stock is owned by the Niagara Falls Co. 

Mr. Barix)n. That is true. 

Mr. Harrison. How much did that cost? 

Mr. Barton. Niagara Falls Power Co.? 

Mr. Harrison. Yes. 

Mr. Barton. That stock was given to the Niagara Falls Power Co. 
as part of a consideration for the power contract and for the fran- 
chise in the city of Buffalo, the Niagara Falls Power Co. had ob- 
tained. 

Mr. Harrison. In other words:, the Niagara Falls Power Co. paid 
nothing in cash or nothing in property except that it gave up the 
right to enter the city of Buffalo to distribute their power there. 

Mr. Bahton. That partly is true. Their franchise in Buffalo also 
is a concossi(m in price. 

Mr. DrFENUERi-'ER. It was a present, in other words. 

Mr. Barton. No; it wasn't a present. There is a very substantial 
consideration in the power contract, the very low price at which 
power was sold to the company was part consideration. 

Mr. DiKKNDERFER. That was the consideration at that time, a con- 
cession, was it? 

Mr. Barton. It was. 

Mr. DiKKNDERFER. At about how much would you approximate the 
value of that concession? 

Mr. Barton. Well, under present ccmditions the Cataract Co. is 
])aying (> per cent dividends. The Niagara Falls Power Co. is get- 
ting about ii>GO,000 for its share of those dividends, $60,000 a year, 
and at the present rate power is delivered, about 05.000 horsepower, 
it would be about $1 a horsepower. 



PRESERVATION OF NIAGARA FALLS. 285 

Mr. DiFENDERFER. Per year? 

Mr. 13artox. Per year. 

Mr. Harrison. Is this company, the Niagara Falls Co., is that the 
company that Morgan is interested in? 

Mr. Barton. I am not sure that Mr. Morgan personally is, but the 
J. P. Morgan Co. is a large shareholder of the company. 

Tlie Chaiioian. Congressman Smith desires to be heard. 

STATEMENT OF CHARLES B. SMITH. 

Mr. S.AiiTii. I desire to ask, Mr. Chairman, if Mr. Kenefick wishes 
to say anything. 

I Avill read, with the committee's consent, two letters which I re- 
ceived from Butfalo, which tend to show the attitude of the people 
of that city. 

The first one is from Mr. Frank C. Ferguson, a leading lawyer of 
the cit}^, wlio wanted (o come before the committee but was unable to 
do so because he had to appear before the Interstate Commerce Com- 
mission. This is what he saj^s: 

Ferguson & Magavern, 
Buffalo, N. Y., January 20, 1912. 

Hou. Charles Bennett Smith, 

Wunhingtoit, i). V. 

Dear Sir: I am glad that yon are taking: such a great interest in the two 
Niagara Falls power qiiestions. the question of the production of electrical 
power on this side of the line, and the question of the importation of Canadian 
power. 

I hope that these things may be made plain to the committee, notwithstand- 
ing the fact that the great public does not find It so easy to go, or send its 
agents, to Washington, and get their views directly befox'e the authorities, as 
to the power companies. 

1. That while electrical power Is produced by the use of the Niagara Falls 
current at a low cost to the producers, the public, ou this side of the intei'na- 
tioual boundary line at least, have never received any benefit from that 
decreased cost of production. On the contrary. It has always had to pay 
exceedingly high rates. Indeed, the city of Buffalo particularly Is worse off 
to-day than as though no electrical power at the Falls had ever been developed. 
In anticipation of cheap Niagara Falls power. It advertised itself far and wide 
as the electrical city. Owing to the fact that It has always had to pay exces- 
sive rates for power. It could not and did not "make good" in its claim, and 
the reaction that followed when the outside world found out the facts has 
harmed it greatly. You know this as well as I do, but people living 500 milee 
from Buffalo do not generally kut)w it. I wish that the committee could have 
one of its hearings at Buffalo, in order that it might find out what the local 
sentiment in this matter reallj- is. 

2. Any sentiment in western New York that any of the power companies 
should be given the right to use any more water than they now have the legal 
right to use, is strictly confined to the power companies themselves, their 
agents and servants. All of the rest of the public believe either that no addi- 
tional water should be used for the development of electrical power, or that 
the additional 4,400 cubic feet of water which the treaty allows to be taken, 
should be turned over to the State of New York, I^eaving out of account the 
matter of the injury to the natural beauty of the Falls by the diversion of 
water, it would, of course, be to the manifest advantage of the public to have 
additional electrical power developed at the Falls, if the public could thereby 
get the power at a reasonably low rate, as It probably could if the present 
electrical power monopoly should be broken and the additional current or 
power development be turned over to the State of New York. The production 
and distribution of electrical power at the Falls at the present time is an abso- 
lute monopoly, and it would not interfere with that monopoly in the slightest 

28.305—1 2 1 



236 PRESEEVATION OF NIAGARA FALLS. 

degree to j;ive to the present coinpaiiies the ri.i:ht to tala- iiu-ieased ;uno>iiit of 
current. 

As long as the development of Niagara power remains a monopoly in private 
hands I li.ive no contidence in our ability to get electrical power at a fair rate 
through the public service commission. 

3. Every restriction on the importation of Canadian power should be at ouce 
removed. Electrical poAver is a "raw material " and should be "free." Elec- 
trical power has of itself no value. It is simply an instrument to produce value. 

4. Subject to the paramount viglt of Congress over navigation r.nd commerce, 
its treaty-making rights and its control over imports, the National (iovernmeut 
iias really no legal right to interfere with the State of New York in the matter 
of the development and sale of Niagara power. 

I hope that the hearings before the committee will not be concluded until the 
authorities of the State of New York shall be heard upon these two subjects — 
of the production and importation of Niagara lunver and until the committee 
shall be well informed as to the real local sentiment in western New York. 
Yours, very truly, 

Frank C. Ferguson. 

That is from Mr. Ferguson. Another letter received this morning 
is from Charles M. Heald. president of the Mutual Transit Co., one 
of the leading transportation com2)anies on the Great Lakes: 

Buffalo, N. Y., Janmuy 23, lUU. 
Hon. Charles Bennett Smith, 

House of Representatives, Washington, D. C. 

My Dear Sir: I have just read a letter recently sent you by Mr. Frank C. 
J"'ergusou, of this city, bearing on the question of Niagara Falls power. 

I am heartily in accord with the position taken by Mr. Ferguson, and I feel 
absolutely safe in saying that in all probability 90 per cent of the citizens of 
Buffalo would concur if they had the opi)ortunity to pass an opinion vipon this 
question. 

While 1 am not aware, of course, as to what it costs to produce this electrical 
power, I am sure it is produced at a low cost, but. unfortunately, the users of it 
on this side of the international boundary line have never yet been able to 
secure the ixiwer at anything like the proper figui'o. 

To properly conserve this power for the interest of the people who have the 
right to it — and that is the people at large — I feel the concession of any rights 
should be invested in the State of New York and not in private companies, as 
our experience with the latter up to this time has not been at all satisfactoi'y. 

Electrical power is, as Mr. Ferguson expressed it. a raw material : it is of no 
value whatever until it is put into use or, in other words. " manufactured," 
and therefore, as raw material, it should be admitted to this country free. 

The State of New York, subject, of course, to Congressional and National 
Government control, should have vested in it the right to control ; and through 
such control, if properly conducted, of course manufacturing industries generally 
would get the benefit of this cheap power, which they certainly are entitled to. 

I trust this matter will not be disposed of before all parties of any importance 
may have an opportunity to be heard before the committee, esiiecially the New 
York State authorities. 

This question of the use and control of the Niagara Falls power is of vital 
interest to this section of the State, and I trust it will receive your earnest 
attention and support. 

Yours, very truly, Charles M. Heald, Presid^ent. 

I have also here a letter from Senator Burd. of Albany, which I 
will have placed in the minutes. 

Committee on Foreign Affairs, 

House of Representatives, Washington, D. C. 

Gentlemen : A matter of large importance to our whole State, and especially 
to the city of Buffalo and its environs, is now pending before your committee, 
I am informed. I refer to the further diversion of water above Niagara Falls 
for power purposes. 

If it had not been for the efforts of Hon. Charles B. Smith, now Congressman 
from the district in which I reside. I am certain our State, and especially our 
locality, would have lost the direct benefit coming from this additional water. 



PEESERVATIOX OF NIAGARA FALLS, 287 

He first, as editor of the Buffalo Courier, directed attention to tlie sul)je<'t, and 
has since continued his eflforts in this behalf. 

Our people will insist and our State will insist on these points : 

1. The paramount and exclusive rights of the State in all [jecuniary benefits 
coruing from the water diversion; it is legally their property, subject to com- 
merce clause. 

2. There must be no more grants in perpetuity or without adequate compeji- 
sation, payjsble to the .Siate. and only granted by the State's permission. 

3. The residuum of water at Niagara Falls should at once be granted the 
State. 

4. The State, and I believe Congress, should insist on re.strictions in the 
grant as regards prices, and uses, and should aim to approximate a maximum 
of power. 

5. I have introduced, and had passetl in the legislature, different resolutions 
covering some or all the above; and I am certain our people will not condone 
any waste of their remaining patrimony along this line. 

Respectfully. . Geo. B. Burd. 

I have also a petition from tlie people of Niagara Falls, N. Y. I 
believe about 50 residents of that city signed a petition in favor of 
having the rights to control the water turned over to the State of 
New York: 

Whereas the rates charged for electric lighting and for power at Niagara are 
unreasonably high. consideiMng the world's greatest power developmenf is within 
our gates ; and 

^Yhereas we have been unable to get relief from the public service commission 
of New York State : 

Resolved, That we urge uix»n the Conunittee on Foreign Affairs the incori>ora- 
tion of a provision in the proposed law which shall give full authority to the 
Federal or to the State authority, or to both, to grant to the city of Niagara 
Falls such diversion of waters as the city may require for public uses, and that 
copies of the foregoing shall be forwarded to Representative .James S. Simmons 
and to Representative Charles Bennett Smith. 

E. L. Brown, president Third Street Business Men's Association ; 
T. H. Wallis. vice president Third Street Business Men's Associa- 
tion ; H. J. Storck, secretary Third Street Business Men's Asso- 
ciation; B. J. O'Reilly, treasurer Third Street Business Men's 
Association; Otto W. Krueger. J. E. Paterson, Chas. C. Ilaunel, 
John K. Kanuuon, H. M. Gous, Welch Bros., Paterson Thompson 
Co., Loud's Piano Co.. Abe Walleus. Daniel Rinkhoff, Harry 
Abelson, Christ Blessing. Niagara Importing Co., McGraw & 
Crowley, McKunnle Bros., Ely Orcles, Nate H. Jacobs. Chas. 
N. Pochel, J. H. Ellenban, S. M. Vward, Carnum Buttius, John P. 
Dolan, Joseph G. Rowen. C. M. Thomas, Geo. A. Adler, John E. 
Seager, members Third Street Business Men's Association. 

I have also some official records of the public service commission 
which I would like to place in the record. They indicate a close 
affiliation among the power and transmission companies operating at 
Niagara Falls. 

On the general question of this legislation I believe the first propo- 
sition that would be considered by the committee is that of the preser- 
vation of the scenic beauty of Niagara Falls. 

Gen. Bixby has been before the committee. He has given the 
results of investigations made by the AVar Department on water 
diversions nlong Niagara River. I believe the committee may safely 
rely on the recommendations of the War Department in that particu- 
lar. You have a representative here for Mr. McFarland :uk1 have 
his views. Avhich are entitled to consideration and respect. To my 
mind, however, the investigation of the War Department has been 
thorough, and T believe the conclusion reached by its engineers ought 
to be final. 



288 PRESERVATION <)b XiAt>AHA FALLS. 

We next come to the efficienc}^ of production at Niagara Falls. A 
statement was made by Mr. Sawyer, one of the first speakers, that we 
have practically a power famine in and around Buffalo. That is 
quite true, but I would like to call the attention of the committee to 
this fact, that the Niagara Falls Power Co., according to the best 
information obtainable, is producing about 10 horsepower for every 
cubic foot of water diverted, and the hydraulic company, which takes 
its water from nearly the same level in the river, produces 20 horse- 
power. I believe that new legislation decided upon by this committee 
should contain an emphatic efficiency clause so that the Niagara Falls 
I^ower Co. would be compelled to })roduce more power per cubic foot 
of water or relinquish its rights to a company which will produce 
power at a higher standard of efficienc3^ 

Mr. Garner. Where would you have placed that power ^ AVould 
you have Congi'ess provide in the bill the degree of efficiency that 
should be maintained by the power company, or would you leave that 
to the War Department or to some other department of the Govern- 
ment ? 

Mr. vSmith. I have prepared a })rovision on that point, and T 
would like to read it to you here. 

Mr. Smith read as follows: 

Sec. 2. That the Secretary of War is hereby authorized to grant to the State 
of New York revocable permits for the diversion of water in the United States, 
from said Niagara Kiver, aliove the Falls, to an aggregate amount not exceed- 
ing a daily diversion at the rate of 20,000 cubic feet of water per sec^ond : 
Provided. That whenever the Secretary of War shall determine that the diver- 
sions of water herein authorized, in connection with the amount of water 
diverted on the Canadian side of the river, above the Falls, interfere with 
the navigable capacity of said river, or its proper volume as a boundary stream, 
or the scenic granrleur of Niagara Falls, or that the water diverted for the 
development of electrical power are not being utilized to tlieir full or proper 
standard of efficiency, he may revolve said permits, after giving notice of not 
less than one year to the State of New Yoric, the President, and tlie Congress 
of the United States of his intention to make such revocation. 

Mr. Harrison. That only applies to power diverted on this side. 

Mr. Smith. Yes. 

Mr, Harrison. Does that api)ly to powder brought over from 
Canada? 

Mr. Smith. I have that question covered in another section, which 
reads as follows: 

Sec. 3. That the Secretary of War is hereby authorized to grant permits for 
the transmission of electrical power from the Dominion of Canada into the 
United States; and the said Secretary may specify the persons, companies, or 
corporations by whom the same shall be transmitted, and the persons, com- 
panies, or corporations to whom the same shall be delivered: Provided. That 
no permit for such transmission or delivery of iiower shall be given by the 
Secretary of War without the full api)roval of the State or States into which 
said ix)wer is to be transmitted or delivered and that the persons, companies. 
or corporations receiving such permits for transmission or delivery shall be 
governed and regulated as to rates and otherwise as the State or States may 
determine. 

Mr. Garner. Let me make a suggestion there— the word "" State " 
is rather broad. Hadn't you better make that the Government, the 
governor of the State? The word State might contemplate the legis- 
lature. 



PRESERVATION OF NIAGARA FALLS. 289 

Mr. Smith. I took that provision from a law that is on the statute 
books. I would be perfectly willin<r to make any change to cover 
the ])oint raised. 

Mr. Garner. If the Secretary of War would want to ascertain 
under what provision, the last provision of your suggested amend- 
ment, Avoiikl he go to the governor or the legislature? You say the 
State. There ought to be some provision, it seems to me, designating, 
for instance, who the Secretary of War could deal with under that 
provision. 

Mr. Smith. I think that is true. 

The Chairman. It should be the public service commission of 
New York. 

Mr. (tarner. Or some definite power that the Secretary of War 
could deal Avith. When you say the State of New York, ithe Secre- 
tary of A^'ar would have to construe that as to what you meant by 
the State of New York, whether you meant the legislative body or 
the governor, or whether you meant the public service commission, 
or the governor alone. It seems to be it would be advisable to 
designate what official the Secretary of War would have to deal with. 

Mr. S:mith. That would be agreeable to me. So far as those pro- 
visions are concernpd — that is, giving the right to the Secretary of 
War to revoke j^ermits — I believe they are proper and that they are 
legal, notwithstanding the contrary statement made here by the 
Attorney General. I was much interested in having Mr. Carmody 
here, because his appearance is the first time in the 20 years of dis- 
cussion over Niagara power that the Staie of New York has shown 
r:Ctual official interest in the development and distribution of electri- 
cal energy at Niagara Falls. The State has been absolutely indifferent 
and neglectful, inefficient and incompetent in handling this whole 
subject; and while I have no doubt, on account of the efforts that 
have gone forward for the last two years, that the conservation com- 
mission at xVlbany may show more interest in the subject, yet I favor 
having the Federal Government keep complete control over the diver- 
sion of water, so that if we can not get proper action or adequate 
protection from the State of New York, we Avill have some right of 
appeal and a further tribunal to which we could go. 

I don't know whether the attorneys for the power company will 
object to the provisions which I have suggested on the ground of con- 
stitutionality, but I believe that these provisions are perfectly legal 
and would be sustained by the courts. 

Now, there are various phases of this subject which might be dis- 
cussed by the committee as a whole, and I suggest an executive hear- 
ing. I do not wish to go into any part of the discussion which the 
connnitt^e doesn't want to hear. If any member desires information 
which I possess or wishes my views on any phase of the situation I 
shall be glad to give it now. 

The CiiAiRiMAN. Do you want to incorporate your letters and memo- 
randum in your remarks? 

Mr. Smith. Yes; and certain official statements of the public 
service connnission. 

The Chairman. You may have that privilege. 

Mr. Garner. In the first jjlace, do you believe that you can divert 
20,000 cubic feet on the American side without mat(>rial]y injuring 
the scenic beautv of the Falls? 



290 PRESERVATION OF NIAGARA FALLS. 

Mr. Smith. I do; and I wish to make this suggestion: That the 
Congress has no authorit}' to prevent the diversion of 3G,000 cubic 
feet on the Canadian side of tlve river; that this disputed 4.400 cubic 
feet allowed under the treaty on the American side is taken from the 
same pool as the 36,000 cubic feet authorized on the other side of the 
river, and therefore the only control this committee has in limiting 
and restricting the diversion relates to 4,400 cubic feet. 

Mr. (tarner. You believe, then, that the authority to import power 
from Canada can be authorized by the Congress and that indirectly 
in order to promote the power on the Canadian side would not mate- 
rially atfect the scenic beauty? 

Mr. Smith. I believe that. 

Mr. Garner. In that connection, how long would you anticipate, 
from jour knowledge of the conditions along the Canadian border, 
that it would be before the Canadian people would be using their 
entire power? 

Mr. Smith. I believe it would be not more than 10 years at the 
most, and probably nearer five years. 

Mr. Garner. And if we, by preventing the importation of it in that 
indirect way, tiy to preserve the scenic beauty of the Falls we would 
not accomplish that for more than five or ten years? 

Mr. Smith. That is my judgment, based on observation. 

Mr. Garner. If this power is imported, you would turn over the 
regulation and control of it as to prices to the State of New York? 

Mr. Smith. Yes. 

Mr. (lARNER. I think j^ou have a provision that the Secretary of 
War might cancel these permits if, upon investigation, the powers 
in New York were not being exercised properly ? 

Mr. Smith. That is my idea. 

Mr. Garner. You would have the same provision apply to the 
20,000 cubic feet to be taken from the American side ? 

Mr. Smith. Yes. 

Mr. Garner. That is to say, j^ou would issue permits by the War 
Department to the State of New York, to be reissued by the State 
of New York to such persons and corporations or companies as would 
Avant this power, and the price to be regulated by the State of New 
York ? 

Mr. Smith. By the State of New York. 

Yfr. DiFENnEiMER. You would not be in favor, then. Mr. Smith, 
of turning over this 4,400 cubic feet to these companies that are 
already in control? 

Mr. Smith. That is a question, of course, that would be taken up 
with or by the State of New York. These companies are claiming 
a right to the remaining 4,400 cubic feet. That is a perfectly natural 
claim. But the companies believe they will get the 4,400 cubic feet 
because of the fact that it is not a sufficient amount, according to 
their view, to warrant the building of another plant. Thoy believe 
that eventually it would go to them by default, because no one else 
would find that small amount financially profitable, unless a project 
similar to that which has l)een put before you by Mr. Bowen were 
consummated. 

Mr. (i.\RNEi{. Wiiicli would udi] an additional l.GOO cubic feet? 

Mr. Smith. Yes. 



PRESERVATION OF NIAGARA FALLS. 291 

Mr. Garner. In 3'our jiidgiiieiit. would that materiaUy affect the 
addition — 1,(300 feet — would that materially affect the scenic beauty, 
in your judgment? 

JNIr. Smith. I don't believe it would. I think it would be infinitesi- 
nuil, that amount of water, on Niagara Falls. 

Mr. Garner. If such a comjDan}' as that were to build a plant upon 
the plans that have been submitted here, do 3'ou believe that the 
public would be the gainer by it? 

Mr. Smith. I believe the public would be gainer. 

Mr. Garner. In cheaper power? 

Mr. Smith, I believe so. 

Mr. Cline. That is, if a new independent company 

Mr. Smith. There is practically a monopoly at Niagara Falls at 
the present time, and while there may be no practical or valid ob- 
jection to that, providing it is adequately regulated, it has not been 
regulated by the public service commission. The public service 
commission will not initiate an investigation, and that, so far as 
State regulation is concerned, is the whole point in this controversy. 
If 100 citizens or if a city makes a complaint, the commission Avill 
take up the complaint and examine the proofs, but the commission 
will not go beyond that point. The result is, in so far as the city 
of Buffalo is concerned, the public service commission has never 
regulated any rate, and the rates at the present time are extortionate. 
I believe this is the judgment of almost everyone in the city of Buf- 
falo. No relief has been obtained, because no verified complaint has 
ever been made to the public service commission. 

Mr. Harrison. Is the public service commission elected in New 
York? 

Mr. Smith. Appointed by the governor. 

Mr. Harrison. For how long? 

Mr. S:mith. They are appointed, I believe, for a period of five 
years. 

^fr. Difenderfek. In your judgment, would there be any beneficial 
results if this committee or a subcommittee were to visit the city of 
Buffalo to ascertain some of these facts? 

Mr. Smith. I do not know what it could accomplish now, in view 
of the hearings that haA'e been held. If the committee had gone 
up there and S]3ent two days, as we desired the members to do, per- 
haps they would have avoided these long hearings and have gotten 
more information. 

The Citaiijman. We have given great latitude in these hearings as 
a matter of courtesy to get all views. 

Mr. Harrison. We certainly got a lot of information on these 
subjects. 

Mr. Garner. It necessarily costs something for the War Depart- 
ment to supervise this power importation from Canada and taking 
water on tlie American side. Is there objection for the State of New 
York or the parties using this power to compensate the Government 
for supervising their business? 

Mr. Smith. I do not know. That Avould be a (luestion for the 
])()wer comi)anies. I believe that so far as the supervision of the 
War Department is concerned, that it does not take much time. The 
time heretofore taken has been due to the investigations made there 



292 PRESERVATIOX OF NIAGARA FALLS. 

as to the amount of water that was actually being diverted. Once 
it was in their control, they would not have to exercise continual 
supervision. 

Mr. (jarnkk. But if Congress sliould adopt your suggestion and 
reserve in the War Department the right to investigate the question 
of whether or not the i^ublic-service commission was giving you a 
reasonable rate, they would have considerable to do, 1 iuiagine, to 
ascertain those facts and see whether or not you were giving a 
reasonable rate. It might take a good deal of machinery. It seems 
now that it has taken $35,000 worth of machinery to ascertain the 
facts in the city of Buffalo alone. 

Mr. I)ifp:xi)erjt:r. Then they have not ascertained it? 

^Ir. (lARXEH. If the United States Government can supervise the 
importation of the power and have something to say about the price 
of it, and als(* supervise the taking of the Avater on this side, and in 
connection with that look into the question of reasonable rates, it 
seems to me that the people to get the benefit of this sujjervision 
ought to contribute to the amount of that expense. 

^fr. Smith. I do not see how it Avould be possible, however, to 
provide a means of getting that compensation. 

^Ir. (tarxer. Well, we would put a little tariff' on the ])ower that 
comes in and make pos-^ibly a condition — I have not investigated 
the law — but we might make some condition on taking the Avater 
from the American side. 

Mr. Smith. I am in favor of placing every restriction and ]ii'ice 
limitation that the Constitution Avill permit. 

Mr. DiFENDERFER. You are not in favor of a tariff? 

Mr. Smith, I would not be. 

Mr. IIarrisox. Have you got a law in the State of Xew York, if 
3'ou know, that prevents and prohibits one competing corporation 
from owning stock in another competing corporation? 

Mr. S:mitii. I do not believe there i^ sucli a law*. I never heard 
of it. 

Mr. Difexderfer. There is a Federal law to that effect, is there 
not? 

The Chairmax. Judge Fennewick, you desire to say something 
to the committee? 

STATEMENT OF DANIEL J. FENNEWICK. OF BUFFALO, N. Y. 

Mr. Fexxewick. I am the local attorney for the Cataract Power 
Co. of r>uff'alo. I understood from newspaper accounts that reached 
Buffalo that some statements Avere made by counsel as to the power 
situation in Buffalo. 

Perliajis T ought to state for the purpose of clarification that long 
before the Niagara Falls PoAver Co. erected its plant at Niagara 
Falls thei'e Avas a lighting company in Buffalo: that it had three or 
four or five steam ])lants Avhere it generated electricity and supplied 
the city of Buffalo and the inhabitants of that city Avith electricity. 
So that that company Avas in existence long before the Niagara Falls 
PoAver Co. 

NoAv. Avhen the Niagara Falls PoAver Co. completed its plant, the 
question arose as to Avhether the poAver could be successfully trans- 
mitted to Buffalo. That problem Avas soh-ed. and the Niagara Falls 



PRESERVATION OF NIAGARA FALLS. 293 

Power Co. decided lo tran^niil tlie power to Buffalo, hut before erect- 
ing its transmission lines it declined to undertake the problem of 
distributing" power in the city of Buffalo. Of course in all of these 
cities you have got to have a franchise from the common council, and 
you have got to submit to certain regulations. It is needless to say 
that in the distril)ution of power in a large city like Buffalo, with 
most of the streets paved, where you are required to put a certain 
amount of your wires underground, that there is a large financial 
problem involved. 

The Niagara Falls PoAver Co.. as I understand it. was unwilling to 
take upon itself the entire burden of distributing the power in Buf- 
falo, and certain gentlemen in Buffalo got together — some five or 
six — got a tentative contract Avith the poAver company, and then they 
got in engineers to see Avhetlier it Avould be a successful financial 
proposition; and tlie report of their engineers was adA'erse, and they 
Avere anxious to give up their contract Avith the poAver company. At 
this stage some of the men Avho were interested in the Buffalo General 
Electric Co., who did not control it, but who were stockholders in it, 
decided that they Avould take that contract off' the hands of these men 
if they Avere Avilling to giA'e it up. Those men gaA'e it up. and these 
other men entered into the contract Avith the Niagara Falls Power Co., 
and that was the inception of the Cataract PoAver & Conduit Co. 

I Avant to call your attention to the fact that five or six men — strong- 
men — in Buffalo, after making a thorough investigation of the situa- 
tion, abandoned the project and got out of their contract, fearing that 
it Avould not be successful financially. 

These other men took up the proposition and put through tlie 
Cataract Power & Conduit Co. 

Mr. DiFEXDERFER. So succcssfully. Judge, that they Avere enabled 
to give half of their stock back to the Niagara Power Co. 

Mr. Fexxeavick. You already haA-e had it stated by one of the 
gentlemen here — I think. Mr. Barton — Avhat the consideration Avas. 

Now. the Cataract PoAver »fc Conduit Co. sells poAver to the Buffalo 
General Electric Co. for all lighting purposes and for poAver in small 
blocks. I think the highest they sell for power is 75 horsepoAver, and 
the Buffalo General Electric Co. abandoned its steam plants. 

Now. I Avant to get it out of your minds at once that the Buffalo 
General Electric Co. is controlled either by the Cataract PoAver & 
Conduit Co. or by the Niagara Falls PoAver Co. I Avant to get it out 
of your minds that the Buffalo Electric Co. is controlled by any 10 
men or any 20 men. 

Mr. Harrison. It is controlled by the Niagara Power Co. 

Mr. Fenneavick. Absolutely not. 

Mr. Harrison. Is not that what Mr. Barton said? 

Mr. Fenneavick. Oh. no: he said the Cataract Power Co. is con- 
trolled by the Niagara Falls PoAver Co.. but not the Buffalo General 
Electric Co. 

Mr. Smith. Is there not a pretty ckise alliance betAveen the Catar- 
act PoAver & Ligliting Co. ? 

Mr. Fexxewick. What do you mean? 

Mr. Sjiith. Are in the same offices? 

Mr. Fexneavick. No: they are in the same building. 

Mr. Smith. Isn't one of the officers of the Cataract Co. also an 
officer of lighting company? 



294 PKESEKVATIOX OF NIAGARA FALLS. 

Mr. Fen NE WICK. Yes; that is true. 

Mr. Harkisok. What officer is tliat, president? 

Mr. Fen NE WICK. No, manager. 

Mr. Dlfenderfer. He is the manager? 

Mr. Fen NE WICK. Yes. 

Mr. DiFENOERFER. FoF both ? 

Mr. Fennewick. Yes, sir. In that respect, but they do not com- 
pete. Wliat I want to sa}- to you is that there is no control, no stock 
control, either b}' the Niagara Falls Power Co. or the Cataract Co. 
of the buffalo General Electric Co., and there is no group of stock- 
holders of those companies who control the Buffalo General Elec- 
tric Co. 

Mr. DiFENDERFER. Then the J. P. Morgan interests are quite evi- 
dent in the Cataract Co., are they not? 

Mr. Fennewick. I understood that they are large stockholders in 
the Niagara Falls Co. 

Mr. DiFENDERFER. Li the Cataract Co.? 

Mr. Fennewick. No; I understand not. 

Mr. Harrison. Can you give us the names of the directors of the 
Buffalo Electric Co.? * 

Mr. Fennewick. I can submit them to you. 

Mr. Harrison. You can give us some of the names, I suppose? 

Mr. Fennewick. Yes, sir. 

Mr. Harrison. That you remember? 

Mr. Fennewick. William C. Warren, Charles E. Huntley, Walter 
C. Cook, ^Ir. Barrick, Mr. Andrew Langdon. 

I can not name them all. 

Mr. H'AiuusoN. You have not named any of the directors in the 
Niagara Falls Co. that are directors in the Electric Co.? 

Mr. Fennewick. I do not believe there are any. Henry W. Burt 
is another, and Pomeroy is a director of the Niagara Falls Power Co. 

Mr. Harrison. What? 

^fr. Fennea\ick. He is the only one director of the Buffalo General 
Electric Co. 

Mr. DiFENDERFER. Ai'c any of those mt'u you named interested in 
the Cataract Co.? 

Mr. Fennewick. I think Mr. Huntlev is interested in the Cataract 
Co., but I think that is all. 

My. Harrison. The general manager is interested in both? 

Mr. Fennewick. Yes, sir. 

Mr. Harrison. Who is that, Mr. Huntley? 

Mr. Fennewick. That is Mr. Huntley. 

Mr. Garner. As I understand it. when the Niagara Falls Power 
Co. decided to build up to Buffalo, they went up to the city line? 

Mr. Fennewick. Yes, sir. 

Mr. Garner. They were a local company doing business in Buffalo, 
and oenerating electricity by steam? 

Mr. Fennewick. One company, the Buffalo General Electric Co. 

Ml-. (iARNKR. The Niagara Co., as it Avere, said: ''Gentlemen, we 
are up here with some cheap power. AVe come up here to furnish 
tli(>se people Avith electricity. Now if you give us the controlling 
stock in your company we will sell power to the company and let 
vou continue business; otherwise we will come in and compete with 
Vou." 



PRESEKVATION OF NIAGARA FALLS. 295 

Mr. Fekxe\vi(k. That was not quite the situation. 

Mr. Garner. It appears that way to me. At least I simply give 
you my idea that the Niagara Falls Power Co. said, "We have got 
some cheaper power, and we v.ill sell it tp you on satisfactory terms; 
otherwise we propose to come in " 

Mr. P^ENNEAviCK. The}' could not come in without getting a fran- 
chise from the city. They had to get a franchise that would permit 
them to come into Buffalo. 

Mr. Garner. I understand, but is it not to be presumed that the 
city of Bufl'alo would let a company come in with cheaper power? 

Mr. Fennewick. Making that assumption; yes. 

Mr. Garner. I do not assume that the city of Butfalo would refuse 
their people cheaper power. 

Mr. Fennewick. You are also assuming that the Niagara Falls 
Power Co. wanted to undertake the distribution of power in Buffalo, 
which they did not. 

Mr. Garner. I will assume, then, that they did not want to dis- 
tribute their power in the city of Buffalo. 

Mr. Fenneavick. That is, the^' did not want to undertake the 
financial responsibility involved. 

Mr. Garker. But they did make such an arrangement after they 
got control of the stock of the company that did distribute, and 
therefore do distribute in the city of Buffalo. 

Mr. Fennewick. They assumed the responsibility of getting up 
to the city line, but said to the other gentlemen: "The question of 
distribution is for you to determine yourselves whether under a 
franchise it would be a paying business." 

Mr. Garner. They succeeded in convincing the gentlemen Avho 
were then distributing electricity in the city of Buffalo to the extent 
of getting a contract granted with them and a controlling interest 
in their company. 

Mr. Fenneaa'ick. Hardly granted. They gave them a very good 
contract, a very favorable contract. 

Mr. Garner. It appears to me like a great big fellow walking up 
to the city of Buffalo and saying, " Gentlemen, you are at my mercy." 

Mr. Fenneavick. I think when you begin to talk about three ])rofits 
here, there are no three profits in the business. Let us assume that the 
Niagara Falls Power Co. are in the business of distributing power and 
light in the city of Buffalo; Avould not it have to haA-e the same plant 
as the Cataract Co. has and the Buffalo General Electric Co. haA^enow? 

It would haA'e to haA'e practically the same investment, and cer- 
tainly Avhen you talk about three profits there are no three j^rofits. 

Mr. Garner. I agree Avith that; if I had been a stockholder in the 
city of Buffalo at the time this poAver came through the gates, I 
Avould have made the best terms possible. I am not criticizing the 
Niagara Falls PoAver Co.. but I am saying that the situation Avas 
such that the Niagara Falls PoAver Co. was able to make its oAvn 
terms Avith the company that could not compete Avith them in the 
matter of cheap power. 

Mr. Fenneavick. I can not quarrel Avitli your deductions, of course. 
I Avant to go a little bit further in reference to extortionate rates. 
I think it is safe to say that there is no large city in the United 
States that gets its electric lighting as cheap as the city of Buffalo, 
and I want Congressman Smith to name mo some large citA' that does. 



296 PRESERVATIOX OF NIAGAEA FALLS. 

Ml'. Clklev. The Edison Co, deliver ti power in Boston, have re- 
duced their kilowatt from 18 cents per kilowatt to a recent reduction 
put in operation last week of 10 cents — a total reduction of 50 per 
cent. What reduction has been made in the last five years by the 
operating companies in Buffalo? 

Mr. Fen>;ewick. I think I can say to you that our highest maxi- 
mum rate is 9 cents for lighting, and I believe that the statistics of 
our company will shoAv that the average rate we get on all of our 
distribution of power, as well of day power as of night power, is 
somewdiere between 2 and 3 cents a kilowatt-hour. 

Mr. CuRLEY. That maximum rate — has that been reduced at any 
time in the last five years? 

Mr. Fen^'ewick. I can not say, but that only applies to very small 
installations of light. I know it has been reduced, as far as the 
municipality is concerned, to 6 cents. 

Mr. CuRLEY. What did the municipality pay previous to that? 

Mr. FEX^•EWICK. Nine cents on small installations. The munici- 
pality pays for the power it gets at the pumping station $25 a horse- 
power. 

Now, I want to sa}- further to you gentlemen, a good deal has been 
said about the lack of power and the unwillingness of the public- 
service commission. AVe have got a public-service commission in the 
second district in the State of New York tha.t I believe is as high 
class a commission as was ever appointed by Governor, now Justice, 
Hughes. The man at the head of it was appointed chairman by Mr. 
Hughes, and he is still chairman, and it is a high-class commission. 
Now, we have had that commission in this district since 1907. At an}' 
time if the cost of electrical power was sirch a great burden as it has 
been represented here, do not you think that 100 users of power, or 
100 users of light, would have taken advantage of the law and made 
a complaint? 

Now, they did not do it, although the subject has been advertised 
by such gentlemen as Mr. Ferguson, who is the writer of one of the 
letters read by Mr. Smith, Avho is a lawyer, and who has a lawsuit 
pending against the Cataract I*ower & Conduit Co., and that possibly 
may explain his interest in the situation. Here Ave have had this 
commission in force since 1907, and with all this talk of extortionate 
prices we have not had 100 consumers who would back up the move- 
ment. 

]Mr. CwxE, There must be some friction there or there would not 
have been $35,000 set aside at Buffalo to investigate that? 

Mr. Fenxewick. You know. Congressman, that undoubtedly you 
will have complaints, and we are perfectly willing to have those com- 
plaints investigated. That is matter that is made a political issue. 

Mr. Cline. Under your theory, if 100 men had made a petition 
it would not have been necessary to set aside $35,000 to get a hearing, 
would it, unless the people of Buffalo had judged it to be an aggra- 
vated case? 

Mr. Fennewick. It was made a sort of a political issue by the 
candidates a couple of years ago, and now, to carrj^ out that pledge 
made in the cani[)aign. the complaint is at the present time made by 
the mayor. The comjjlaint can either be presented by 100 consumej-s 
or l)V the mavor. 



PRESERVATION OF NIAGARA FALLS. 297 

Mr. DiFENDERFER. Is it iiot a fact that over 100, in the neighbor- 
hood of 150, names have been placed on the petition protesting 
against these high prices? 

Mr. Fennewick. Since the complaint was made by the municipality, 
Avithin about fifteen days a gentlemen who has been very active in the 
matter has succeeded in getting 100 names as to the lighting company 
and three names as to the poAver company. 

It is not necessary to spend $30,000 or $35,000 for this investiga- 
tion. Not at all. But the corporation counsel thinks it is and has 
got that money at his command to spend. 

Counsel submits tliat no investigations of rate of any of the public 
utilities have been undertaken by the j^ublic service commission. 
That is not true. We have just finished an investigation of the 
Buffalo Gas Co. that has extended over a year. 

Mr. DiFENDERFER. Has that any connection with the electric com- 
pany ? 

Mr. Fen N WICK. None at all; but I simply want to indicate that it 
shows that the public service commission is active when it is called 
upon to exercise its power. 

Mr. DiFENDERFER. In some particulars. 

Mi\ Fennewick. In all particulars. 

If you can indicate to me one instance I will be glad to answer you 
if I can. 

Mr. DiFENDERFER. It is quitc evident that they have not interfered 
with the electrical-power up to this time. I think Mr, Smith is quite 
right in his statement that he made here. 

Mr. Fennewick. In what way? We have been before them often 
enough, not on the question of rates, because that question has not 
been complained of; no one has complained. 

Mr. Harrison. It was so important that it was made a political 
issue. 

]Mr. Fennwick. You know how easy such a political issue can be 
created. 

Mr. Harrison. May I ask you one question. Who won ? 

Mr. Fennewick. The Democrats. 

Mr. DiFENDERFER. Then it is a popular issue. 

Mr. Smith. Gen. Greene says that they are selling the power at 
Lockport at $18, and your company sells it in Buffalo at $25. 

Mr. DiFENDERFER. Aiid there is only 6 miles difference in the dis- 
tance to carry. 

Mr. Fennewick. Now, if j-ou gentlemen will consider the difference 
in size of Lockport and Buffalo and the difference in cost of distribut- 
ing power in Buffalo. 

Mr. Smith. It is not distributed. 

Mr. Fennewick. We have got to distribute. We have got to dis- 
tribute it and they take it from the city line and bring down the 
voltage. 

Do you know, gentlemen, it costs you from $12,000 to $15,000 a 
mile to put the Avires underground? There is an ordinance 

Mr. Cline. According to the testimony produced here the trans- 
mitting company gets in the neighborhood of $7 to $7.60 for trans- 
mitting the power, an amount equal to the cost of producing the 
power by the company they receive it from. 



298 PRESERVATION OF NIAGARA FALLS. 

Mr. FE^,^E^vu■K. I understood Mr. Barton to say that the cost of 
producing ^vas $12, and not $9.40, on the Canadian side. 

It costs us from $12,000 to $15,000 a mile to put the wires under- 
ground in the city of Buffalo. 

An ordinance was enacted back in 1906 or 1907 under which we 
are required in the first year to put down 3^ miles, and the next year 
3| miles, and the next year 3 miles; and every j-ear thereafter, con- 
tinuing on indefinitely, we are required to put down 2 miles. Now, 
we have not any such ordinance down through Lockport or in these 
small cities, and you gentlemen ought to have the proper conception 
of the cost of distribution of power Avhen you get in a large city. 

Mr. Harrison. You represent the General Electric Co. 

Mr. Fennewick. Yes, sir; I am the local attorney for both com- 
panies. 

I do not know that I have anything more to say, gentlemen. 

The Chairman. Maj. W. B. La Due. of the War Department. 

Mr. Fennewick. Might I be permitted to file here copies of some 
of the certificates made b}' our users of power in Buffalo indicating 
their satisfaction with the general service ? 

The CHAiR:vrAN. Is it very voluminous? I think it would be advis- 
able to give each member of the committee a copy. 

STATEMENT OF MAJ. LA DUE. 

Maj. La Due. I have nothing further to say, excejDt that I have 
here a statement that I secured in resf)onse to an implied request of 
some of the representatives of the power companies, showing the 
diversions during the month of December, which I Avill append to 
my hearing. It shows that during the month of December the aver- 
age total diversions by the two companies on this side was 13,785 feet. 
The maximum diversion, however, was up to the full limit of the 
permits. The diversion on the Canadian side, the average during 
December, was 12,500, the maximum being 16,400. The total diver- 
sion on both sides of the river was an average for the month of 20,345 
and a maximum of 31,030. This information may be of value, and I 
will append it to my hearing. I will also append copies of the 
permits now in force. I have them here if the members would like 
to see them. I will also append two short statements prepared in 
the Office of the Chief of Engineers. 



PRESERVATION 01<^ NIAGARA FALLS. 



299 



Tabi>b a. — Stntcnieut shoirinu Cf<iiiii<tic(l (lircrsloiis of all coDiiJaiik.^ and irnpfyr- 
lation of power into the liiil<<l Stairs from VanaiUan com'jianics, ricinity of 
Xiaf/aia Falls, N. Y., for month of December. 1911. 

[Furnished by the lake survey office, Detroit, Mich.] 



Diversions (cubic feet 
per second). 



Importation of power 
(horsepower). 



Niagara Falls Hydraulic Power A- Mamifaeturiug Co. 

(Hydraulic Power Co.) 

Niagara Falls Power Co 

Ontario Power Co 

Electrical Development Co 

Canadian Niagara Power Co 

International R. R. Co 

Niagara. Lockport & Ontario Power Co 

Niagara Falls Power Co 



Average. Maximum, j Average. Maximum 



6,135 
7,a50 
4,500 
3,650 
4,300 
110 



6.030 
8,000 
5,750 
5,000 
5,650 



Total. 



38,700 
46,500 



57,000 
157,800 



31,630 



85,200 



114,800 



1 The permit issued to the Niagara Falls Power Co. by the Secretary of Wav specified 
52,500 electrical iior.sepower as the maximum load that can be brought into the United 
States, with the prevision that " Teaks of load curves due to overlapping loads will not 
be considered as violations of the p(>rmit, provided the duration of any one such peak, 
mea.sured on the 52..!>00 horsepower line, does not exceed one hour, and provided that the 
total duration of such peaks iu 24 hours, measured in the same manner, does not exceed 
two hours." 

Notes. — The diversions of the Canadian companies are determined by applying the 
efficiencies of these plants, as stated in report of Sept. oO. 1911, to the output of power 
as determined by the inspections of the companies' rec<irds. 

The Lockport Hydraulic Co. (Hydraulic Race Co.) has been shut down since the close 
of navigation owing to the reconstruction of canal in that vicinity. 

The maximum diversion indicated al)ove for the Niagara Falls Hydraulic Power & 
Manufacturing Co. is determined by applying the coefficient of relation between diversion 
and output, as determined bj- the discliarge observations of December last, to the maxi- 
mum output of the plant in December. Tliis apparent violation of this company's permit 
occurred after discharge measurements were made and before reductions of the notes had 
been completed and limitations of output prescribed, l-'urther investigation of this mat- 
ter is being made preparatoi-y to submitting a special report. 

The amount of power imported is determined by direct inspection of graphic records 
of the transmission companies for l>ecenit)er last. 



STATKM1:NT as to the effect on lake ERIE COMMERCE OF A PERMANENT LOWER- 
ING OF ONE INCH IN THE WATER SURFACE OF LAKE ERIE. 

Ill view of the general interest in the very important question of the water 
levels of the Great Lakes, referred to. incidentally at the public hearings rela- 
tive to the Niagara Falls diversion, it is deemed pertinent to invite attention 
of the committee to the statement of Brig. Gen. William L. Marshall, Chief of 
Engineers, in transmitting to the Secretarv of War Maj. Keller's report of 
November 30, 1908 (p. 8, S. Doc. No. 105, 62d Cong., 1st sess.), to the follow- 
ing effect : 

"As each inch of draft for the modern lake freighter is the equivalent of 
from 80 to 1(X) tons of profitable cargo, the aggregate loss per season for the 
entire fleet using Lake Erie ports as terminals becomes a very large amount." 

Maj. Keller in his report (p. 15, S. Doe. No. 105. 62d Cong., 1st sess.), said: 

" The earning capacity of each freighter will be reduced to the extent of 
$75 to $100 per trip. During an average season the loss for each vessel would 
total $2,500 to $3,000." 

The total commerce using Lake Erie ports may be stated as approximately 
03,(XK),000 tons i>er annum, of which from 30,000,000 to 40.000,000 tons is now- 
carried in vessels of 10,000 tons burden or over, which may be affected in any 
lowering of the water surface. Based uixm the above figures, and assuming 
that cargo is available in quantity to permit the loading of each vessel on each 
trip, to the maximum draft permitted by the controlling depths of Lake Erie 
ports, the total potenti.il loss to Lake Erie commerce due to a permanent 
lowering of 1 inch in the water surface may be taken at from $250,000 to 
$350,000 per annum; and this potential figure will increase with the antici- 



300 PRKSEHVATION OF NIAGAKA FALLS. 

pated natural increase in the muiiber and size of the larger vessels, and iu the 
total commerce of the lake. When the time comes that a matter of inches be- 
comes a question of immeiliate importance to Lake Erie commerce, any lower- 
ing of that Like due to the Niagara diversions (which affect only Lake Erie 
and upper Niagara River) can be readily controlled by proper regulation works 
in Niagara River; although such slight effect and ready control will not be 
true of the Chicago diversion which is several times greater in amount, and 
must affect all four lower lakes and the St. Lawrence River, to a serious ex- 
tent, unless controlled at several places by regulation works of great final cost 
ill time and money. 



STATEMKNT AS TO THE USE OF WATKR DIVEHTED FROM THE ERIE CANAL BY THE 
HYDRAULIC R.ACE CO. (SUCCESSORS OF THE LOCKPORT HYDRAULIC CO.) 

Upon the request of the Hydraulic Race Co. of Lockport, N. Y.. there is 
transmitted herewith for the information of the committee a copy of a letter 
from the Hydraulic Race Co.. dated .January 20, 1912. in regard to the use 
of the water diverted by that company from the Erie Canal for power pur- 
poses, under tlieir permit to divert 500 cubic feet per second, granted by the 
Secretary of War under date of August 1(5, 1007. While this office has not 
been able, in the time available since receipt of this letter, to verify the ligures 
statetl therein, it is within the knowletlge of this office that the general state- 
ments made are substantially ccn-rect; and in view of the prominence given 
at the public hearings to the principle that all water diverted at Niagara Falls 
should be used in such manner as to utilize the maximum possible head, it 
is deenjod to be but fair and just to the Hydraulic Race Co. lo place before 
the committee this statement, showing that while the Hydraulic Race Co. at 
its own plant uses but a 50-foot head (approximately tbe fall between the two 
levels of the Erie Canal at Lockport) the water diverted by them under their 
permit again passes out of the canal below the locks and "'s used over and over 
again by other power users between the Erie Canal and Lake Ontario, so 
that the total head finally utilized is a very large percentage of the total head 
available. This successive use of the water is distinctly lu-ovided for by the 
terms of the permit issued by the Secretary of War to the Hydraulic Race 
Co., as will be seen l)y reference to that document. 



Hydraulic Race Co.. 
Lockport, ^\ y., January 20, 1912. 
Gen. W. H. Bixby. 

Chief of Engineers, United t:^tatex Arviy, 

Washi)igion. D. C. 

Dear Sir : We have before us copy of document No. 246 entitled " Preserva- 
tion of Niagara Falls." On page 16 of this document is a table which indicates 
that the Lockport Hydraulic Co. is using but 11 per cent of the efficiency of a 
220-foot fall, which will, we fear, lead many into a belief that the water 
granted (500 cubic f(>et) under the permit is a less economical development 
than any of the others, when, as a matter of fact, the water is used under a 
much greater head than any other water diverted from Niagara River. 

In explanation, we add that reference to the permit of August 16, 1907. will 
show that it specifically provided for the use of the water by factories on 
Eighteenmile Creek, Medina, Albion, and other places after its passage through 
the development of the hydraulic company. It may fairly be said that no 
other Niagara River water performs a greater use in promoting the interests 
of the small consumer and individual manufacturer than that granted to the 
Lockport Hydraulic Co., nor is any more fully used. 

We have taken the water practically at Lake Erie level (the level above the 
locks being usually between 509 and 570), and of the total fall of about .320 
feet from this iioint to Lake Ontario over 280 feet is available, and, iu the end, 
improved operating conditions and cJianges will result in utilization of even 
more. 



PRESERVATION OF XIAGARA FALLS. 301 

We give tlie following lieads as approxiuiately correct for tlie various sites, 
beginning at Locliport and extending down Eighteenniile Creelt to Olcott : 

Feet. 

Hydraulic Race Co. (Lockport Hydraulic Co.) 50 

United Boxboard Co. (first plant) 32.5 

United Boxboard Co. (second plant) 14 

Lockport Paper Co !) 

Niagara Paper Mills 0. 5 

Westerman & Co 21 

United Indurated Fiber Co 29 

Electric Smelting Co 35. 5 

Newfane Electric Co 7 

Newfane Basket Co 14 

Lockport Felt Co 

Western New Yoi^ Water Co 50 

Total 280.5 

All the plants of Eigbteenniile Creek are practically entirely dependent for 
their operation on the periuit of August, 1907, for their water power. 

Our company's head will be lessened somewhat under new conditions of the 
barge canal, and one or two of the falls are not utilized at date, notably that 
of the western New York Water Co. 

All these powers and their ojieration Iiave been very much disturbed by the 
building of the new barge canal, but should be greatly improved in the future 
with more stable conditions, and it is possible that almost the entire fall to Lake 
Ontario will be utilized, and the total should certainly reach 300 feet, Avhich 
conipares more than favorably with the 220 feet available at Niagara Falls. 

While we are not familiar with i)resent conditions at the plants now operating 
on Eighteenmile Creek, it is fair to state that the head actually in use now is 
approximately 220 feet, so that the efficiency of this development on this basis 
should, we believe, be higher than any of the others, and the power even now 
amounts to several thousand horsepower. 

We would apjireciate it if the reimrt may be amended in these particulars, 
lest some injury be done the various interests which have for so many years 
and before the passage of the Burton Act had the use of this water and upon 
which water their success now so largely depends. 

We are sending this to you rather hastily, as we believe that there is to be a 
meeting on this whole question on Tuesday next. January 23. and you may wish 
to have this data before you and the others at that time. 

We would appreciate your advices and trust the data may be of service. 

liespectfully submitted. 

Hydraulic Race Co., 
By L. H. Kunhaedt, 

Treasurer and Engineer. 



I'i:iiMIT TO LOCKPOKT HYDRAULIC CO. FOR DIVERSION OF WATER AT LOCKPORT, N. Y. 

Whereas by section 2 i«t an act of Congress approved June 29, 1908, entitled 
"An act for the control and regulation of the waters of Niagara River, for 
the preservation of Niagara Falls, and for other purposes" (34 Stat. L.. 626), 
it is provided that the Secretary of War is authorized to grant permits for 
the diversion of water in the United States from the Niagara River ot its 
tributaries, for the creation of power, to individuals, companies, or corporations, 
which are now actually jaodueing power from the waters of said river, or its 
tributaries in the State of New York, or from the Erie Canal; to an amount 
not exceeding in the maximum 8,600 cubic feet per second to any one individual, 
company, or corporation and not exceeding an aggregate amount of 15.6(X) cubic 
feet per second ; and 

Whereas waters are being diverted from the Erie Canal for the creation of 
power by the Lockport Hydraulic Co., a corporation organized under the laws 
of the State of New York, at Lockport. N. Y.. by the abstraction of approxi- 
mately 1,000 cubic feet of water per second from above the locks at said place. 

28405—12 20 



302 PRESERVATION OF NIAGARA FAILS. 

which water is retiirued to the Erie Canal below the locks, of which total 
quantity 500 cubic feet is required for navigation purposes and the remaining 
50(1 cubic feet is not required for navigation purposes: and 

Whereas the said waters not required for navigation purposes, after being 
returned to the canal below the locks, are again diverted from the canal and 
are used for power purposes by various persons and coriiorations located upon 
ICigliteeumile Creek, at and below Lockport. and at Middleport. at Medina, at 
Eagle Harbor, at Albion, at Ilolley. and at other i)laces. and are not returned 
to the canal ; many of the persons or corporations on Eighteenniile Creek using 
the same water in succession, one after the other; and 

Wliereas application has been made to the Secretary of War by the Lockport 
Hydraulic Co. for permission to divert 500 cubic feet per second from the 
Eiie Canal at Lockport above the locks, and application has been made by 
various persons and corporations to divert various amounts from the Erie 
Canal below the locks; and 

Wliereas the diversion of water from the Erie Canal below the locks is not 
properly the diversion of water from the >>'iagara Kiver or its tributaries, 
since said water diverted below the locks has already been diverted from above 
the locks and has been used for pftwer puri)oses: 

Now, therefore, this is to certify that the Secretary of War hereby grants 
permission to the Lockport Hydraidic Co., said applicant, to divert waters of 
the Niagara River and its tributaries from the Erie Canal, at Lockport. N. Y.. 
abo\e the locks, for ])ower purposes, not exceeding 500 cubic feet per second, 
it being distinctly understood that the waters so diverted shall be returned to 
the canal below the locks, and that this permit shall inure to the benefit of all 
persons and cori)orations now using said water for power i)urposes. whether 
lessees of the applicant or having the right to bo furnished by it with water, 
and including the persons and cori)orations now diverting water as aforesaid 
from the Erie Canal at Eighteenniile Creek, Middleport, Medina, Eagle Harbor, 
Albion, Holley, and other places on the lower level. 

This permit is granted upon condition and with the understanding that it 
does not confer upon the ai>plicant. or said other persons or corporations, any 
authority whatever to divert water from the Erie Canal without the consent 
of the State of New York, and that this permit is subject to any and all regula- 
tions which may be imposeil upon the diversion of water from said canal by said 
Slate: and, further, that this permit is made sub.iect to the juristliction of said 
St:itc to alter, improve, or abolish the said canal and to prevent the diversion 
vf any water whatever therefrom, and this permit shall not be taken to impose 
any obligation whatever upon the said State or the authorities thereof. It is 
intended to confer only so far as the Federal Government is concerned, and 
the Secretary of War Is authorized, the right to take the water and to claim 
innnunity from any prosecution or legal obligation under the first section of 
the act approvetl June 29, 1906, above mentioned. 

Witness my hand this IGth day of August, 1907. 

Wm. H. T.iiFT. Sccrctdi'y of War. 

Extended September 2. 1911. to March 1. 1912. 



PEI'.MIT TO NIAGAU.\ FALLS HYDRAULIC POWER & MANUFACTURING CO. FOR THE 
DIVERSION OF WATER FROM THE NIAGARA RIVEB FOR POWER PURPOSES. 

AVhereas under the provisions of an act of Congress approved June 29. 1900. 
entitled "An act for the control and regulation of the Niagara River for the 
preservation of Niagara Falls and other purposes." it is provided that the 
Secretary of War may grant permits for the diversion of water in the United 
States from said Niagara lUver or its tributaries for the creation of power, and 
that it shall not be lawful to divert wJiter from said river for power purposes 
excei)t in accordance with permits so issued by the Secretary of War: and 

Whereas upon the applications, hearings, reports, and all the pi-oceedings by 
applicj'uts for permits under the provisions of the said act the Secretary of 
War. under date of January 18, 1907, filed a written opinion directing, among 
other things, that a permit be issueil to the Niagara Falls Hydraulic Rower & 
Manufacturing Qo. for the diversion of G.500 cubic feet i>er second ; 

Now, therefore, this is to certify that the Secretary of War hereby gives 
permission to the Niagara Falls Hydraulic Power & Manufacturing Co. to 



PEESERVATION OF NIAGAEA FALLS. 303 

divert 6.5C)0 cubic feot of water per second from the Niagara River upon the fol- 
lowinjj terms and conditions : 

First. Tlie amount above named. 6,500 cubic feet per second, represents tbo 
maximum (piantity of water tliat can be diverted at any time under tlie terms 
of this permit. 

Seccmd. Tlie grantee shall malce. under the supervision of an authorized 
inspector of tlie United States, measurements in its intalve canals of such a 
character and at such times as may be deemed necessary to show the amount 
of water diverted. 

Third. The grantee shall keep such records as will show at any time the com- 
bined continuous output of its power stations and of the power stations of its 
customers to whom water power or mechanical horsepower is fni-nished. 

Fourth. The power stations of the grantee and of its customers, to whom 
water power or mechanical horsepower is furnishetl, together with their operat- 
ing records, shall be subject to inspection at all times by authorized inspectors 
of the United State.s. 

Fifth. This permit is issued without any determination of priority of right 
to divert water from the Niagara River between the parties to whom permits 
for diversion may be issued. 

Sixth. The grantee shall carry out in good faith the obligations which it 
assumed in its letters to the War Department, or to the representative of that 
Department, concerning the improAement of the scenic conditions on the 
American side of the gorge below the Upper Arch Bridge. 

Seventh. The Secretary of War reserves the right at any time to modify 
the form of tliis permit, to change the method or plan of measurement herein 
prescribed, or to substitute otlier methods of measurement whenever, in his 
judgment, such modifications, changes, or substitutions are necessary to carry 
out the provisions of the act of June 29, 1906. under which this permit is issued. 

Witness my hand this 16th day of August. 1907. 

Wm. H. Taft, Secretary of War. 
Exteudetl September 2. 1911, to March 1. 1912. 



Permit t(i Xhniarn I'dlls I'oircr Co. for tlie diversion of wnter from tlie Xidf/arti 
Rirci- for poiccr purposes. 

Whereas, under the provisions of an act of Congress, approved June 29, 1900, 
entitled "An act for the control and regulation of the Niagara River for the 
preservation of Niagara Falls, and other purposes," it is provided that the 
Secretary of War may grant permits for the diversion of water in the l^nitetl 
States from said Niagara River or its tributaries for the creation of power, 
iind that it shall not be lawful to divert water from said river, for power pur- 
lioses. except in accordance with permits so issued by the Secretary of War; and 

Whereas, upon the applications, hearings, reports, and all the proceedings by 
applicants for permits under the provisions of the said act. the Secretary of 
War. mider date of January 18. 1907. filetl a written opinion, directing, among 
other things, that a pei-mit be issued to the Niagara Falls Power CoT for the 
diversion of 8,600 cubic feet per second : 

Now. therefore, this is to certify that the Secretary of War liereby gives 
]iermission to the Niagara Falls Power Co. to divert 8,600 cubic feet of water 
per second from the Niagara River, upon the following terms and conditions: 

First. The amount above named. 8.600 cubic feet per second, represents the 
maximum rpiantity of water tbat can be diverted at any time under the terms of 
this permit. 

Second. The grantee sh.ill make, under the superxision of an authorized 
inspector of the T'nited States, measurements in its intake canals of such ;i 
character and at such times as may be deemed necessary to show the amount 
of water diverted. 

Third. The grantee shall keep such records as will show at any time the 
combined continuous output of its power stations and of the power stations of 
its customers to whom water itower or mechanical horsepower is furnished. 

Fourth. The power stations of the grantee, and of its customers, to whom 
water power or mechanical horsepower is furnishetl, together with their oper- 



304 PRESERVATION OF NIAGARA FALLS. 

ntiiig rocords. shall be subject to Inspection at all times by authorized inspectors 
of the rulted States. 

Fifth. This permit is issued without any determination of priority of vis;ht 
to divert water from the Niagara River between the parties to whom such per- 
mits, for diversion, may be issued. 

Sixth. The Secretary of War reserves the right at any time to modify the 
form of this jiermit, to change the method or plan of measurement hereiti 
prescribed, or to substitute other methods of measurement, whenever, in his 
.judgment, .such modifications, changes, or substitutions are necessary to carry 
out the provisions of the act of June 29, 1906, under which this permit is issued. 

Witness my hand this sixteenth day of August, 1907. 

AVm. II. T.\FT, Sccrctarji of W(n\ 

Extended Septen!l)er 2, 1011. to March 1. 1012. 



PKKMIT I-()I{ THE TR.VXSMISSION OF ELECTRICAT. TOWKR FROif CAN.\DA INTO THE 

UNITED STATES. 

Whereas under the jtrovisions of an act of Congress, approvetl June 29. 1906, 
entitled " An act for the control and regulation of the Niagara River, for the 
preservation of Niagara Falls, and other purposes," it is provided that the 
Secretary of War may grant permits for the transmission of power from the 
Dominion of Canada into the United States, and that it shall not be lawful 
to transmit electrical power into the United States from Canada except in 
accordance with the permits so issued by the Secretary of War; and 

Whereas uj^on all th(> proceedings taken in respect of permits under the said 
act. the Stvrotary of War. under date of January IS. 1907. filed a written 
oi>inion. directing, among other things, that a permit issue to the Niagara Falls 
Electrical Transmission Co. for the transmission of 46,000 electrical horsepower 
from the Dominion of Canada into the United States; and 

Whereas the said Niagara Falls Electrical Transmission Co. has made a 
supplemental petition that such permit provide that a part of such electrical 
power may be delivered to the Cataract Power & Conduit Co. (a New York 
State corporation for use in the United States after transformation by step- 
uj) transformers of the Canadian Niagara Power Co. at Niagara Falls, Canada, 
and transmission to point in the international boundary between Fort Erie, 
Canada, and Buffalo. N. Y., over the power transmission lines of the Canadian 
Niagara Power Co. 

Now. therefore, this is to certify that hereby the Secretary of War gives 
permission to the said Cataract Power & Conduit Co. and to the Niagara 
Falls Electrical Transmission Co.. and to such other distributing agents or 
companies in the Ignited States as The Electrical Development Co. of Ontario 
(Ltd.) may designate to receive from the said The Electrical Development Co. 
of Ontario (Ltd.) at the international boundary line and to transmit into the 
T'nitod States 46.000 electrical horsepower upon the following terms and con- 
ditions: 

First. A part of such electrical jiower may be received by the said Cataract 
Power & Conduit Co. at the international boundary over the power trans- 
mission lines of the Canadian Niagara Power Co. The remaining part of such 
electrical power may be transmitted into the United States over transmission 
circuits hereafter to be approved by the Chief of Engineers, and may be 
received by the said Niagara Falls Ele<^^'trical Transmission Co.. or by such 
other distributing agents or comjtanies in the LTnited States as the said The 
Electrical Development Co. of Ontario (Ltd.) may designate. 

Second. So long as the said Cataract Power & Conduit Co. and the said 
Niagara Falls Electrical Transmission Co. shall procure from the Electrical 
Development Co. of Ontario (Ltd.) the right for the Chief of Engineers, or 
his representatives to enter upon the premises of the Electrical Development 
Co. of Ontario (Ltd.) and to inspect and verify their records to the satisfac- 
tion of the Chief of Engineers, and so long as the amount of power transmitted 
to the United States does not exceed 75 per cent of the amount herein author- 
ized, the measurements necessary to insure compliance with the terms of this 
IKM-mit shall be made at the expense of the grantee at the station of the 
Electrical Development Co. of Ontario (Ltd.), due allowance being made for 
losses between the measuring station and the international boundary line. 



PRESERVATION OF NIAGARA FALLS. 305 

TLird. "When the auiouut of power transmitted to the United States under 
the terms of this permit exceeds 75 per cent of the authorized amount, or if 
right of access or examination to the satisfaction of the Chief of Engineers is 
declined or refused at any time by the Electrical Development Co. of Ontario 
(Ltd.). the measurements necessary to insure compliance with the terms of 
this permit shall be made at suitable points in the United States near the inter- 
national boundary. 

Fourth. When under either of the conditions named in the paragraph imme- 
diately preceding the power imported is measured at points in the United States, 
such measurements shall be made by continuous record indicating watt meters 
of api)roYed design, to be furnished, installed, and maintained by the grantee; 
continuous records shall be taken on each independent circuit entering the 
United States; the meters shall be kept in efficient condition, and the records 
shall be subject to inspection at any time by authorized inspectors of the United 
States. 

Fifth. Except as noted below, 4ii,0(X) electrical horsepower represents the 
aggregate maximum loads that can be brought ito the United States at any 
time under the terms of this permit : 

(a) Momentary indications in excess of the authorized amount, due to short 
circuits, grounds, etc.. will not be considered as violations of the permit. 

(&) Peaks of load curves due to overlapping loads will not be considered as 
violations of the permit provided the duration of any one such peak, measured 
on the 46,000 horsepower line, does not exceed one hour, and provided that the 
total duration of such peaks in 24 hours, measured in the same maner, does not 
exceed two hours. 

Sixth. Maps or charts, verified to the satisfaction of the Chief of Engineers, 
shall be filed with the Chief of Engineers, showing the exact location of all 
lines or circuits over which power is transmitted into the United States under 
the provisions of this permit: and no change shall be made in such lines or 
circuits without submitting at the same time to the Chief of Engineers, or his 
representative, a map or chart showing such change. 

Seventh. One of the objects of the law being the preservation of the natural 
scenic conditions of the Falls and the gorge, it is stipulated that the plans for 
carrying the power across the international boundary be submitted to the Secre- 
tary of War for approval before work is undertaken. For the same reason, it is 
further stipulated that no steps be take by the grantee, or its allied interests, 
as disclosed in its application for a permit toward the construction of another 
bridge across the Niagara River. 

Eighth. The Secretary of War reserves the right at any time to modify the 
form of this permit, to change the method or plan of measurement herein pre- 
scribed, or to substitute other methods of mea.surement whenever, in his judg- 
ment, such modifications, changes, or substitutions are necessary to carry out 
the provisions of the act of June 29. 1900. under which this i»ermit is issued. 

Witness my hand this ITth day of August, 1907. 

Wm. H. Taft, Sccretdrii of War. 



PERMIT TO XIAC.AK.V FALLS POWKR CO. FOR THE Ti?ANSMTSSIOX OF ELECTniCAL POWER 
FROM CANADA INTO THE UNITED STATES. 

Whereas under the provisions of an act of Congress, approved June 29, 1906, 
entitled "An act for the control and regulation of the Niagara River for the 
preservation of Niagara Falls, and for other purposes." it is provided that the 
Secretary of Vv'ar may grant permits for the transmission of power from the 
Dominion of Canada into the United States, and that it shall not be lawful to 
ti'ansniit electrical jiower into the United States from Canada except in accord- 
ance with the permits so issued by the Secretary of War; 

"Whereas upon the applications, hearings, reports, and all the proceedings by 
the applicants for permits under the provisions of the said act. the Secretary of 
War. under date of January 18, 1907. filed a written opinion directing, among 
other things, that a permit be issued to the Niagara Falls Power Co. for the 
transmission of 52.500 electrical horsepower from the Dominion of Canada into 
the TTnited States ; 

Now, therefore, this is to certify that the Secretary of War hereby gives 
permission to the Niagara Falls Power Co. to receive from the Canadian 



306 PRESERVATION OF NTAGABA FALLS. 

Niagara Power Co.. at the interuatioual boiuulary line, aucl to transmit from the 
Dominion of Canada into the I'nited States. T,2.'AH) electrical horsepower, npou 
the following terms and conditions: 

First. Snch electrical itower may be received in tlie United States in the 
first instance by the Niagara Falls Power Co. or by its distributing agents or 
others with whom it or the Canadian Niagara Power Co. has or hereafter may 
have contracts for power delivery in tlie United States. 

Second. Measurements of the amount of power transmitted into tlie I'nited 
States under the terms of this permit sliall be made at suitable points in the 
United States near the internalioual boundary by continuous record-indicating 
wattmeters of approved design, to be furnished, installed, and maintained by 
the grantee: continuous re(.-ords shall Ite taken on each independent circuit 
entering the United States; the meters shall be kept in etiicient conditioUj and 
the records shall be subject to insJ)ectio^^ at any tixue by authorized insjiectors 
of the United States. 

Third. Except as noted below, 52,500 electrical horsepower represents the 
maximum load that can be brought into the United States at any time under the 
terms of this permit : 

(rt) Momentary indications in excess of the authorized amount, due to short 
circuits, grounds, etc., will not be considered as violations of the permit. 

(b) Peaks of load curves, due to overlapping lo.ids, will not be considered as 
violations of the permit, provided the duration of any one siich peak, measured 
on the 52,5(X>-horsepower line, does not exceed one hour, and provided that the 
total duration of such peaks in twenty-four hours, measured in the same 
manner, does not exceed two hours. 

Fourth. Maps or charts, verifieti to the satisfaction of the Chief of Engineers, 
shall be tiled witli the Chief of Engineers, showing the exact location of all 
lines or circuits over which power is transmitted into the United States under 
the provisions of this permit, and no change shall be made in such lines or cir- 
cuits without submitting at tlie same time to the Chief of Engineers or his 
representative a map or chart showing such change. 

Fifth. The StM-retary of War reser\es the right at any time to modify the 
form of this perndt. to change the method or plan of measurement herein 
I)rescribed. or to substitute other methods of measnrenient whenever, in his 
judgment, sucli modification.s, changes, or subsiltulions are necessary to carrj' 
out the provisions of the act of June 20, 1906. under which this permit is issued. 

Witness my hand this 16th day of August. 1!X>7. 

W.M. H. Taft. Secretary of War. 

Extended September 2, 1911. to .March 1. 1912. 



Permit to Xiaffura, Loekiwrt tC- Ontario Poicer Co. for the traii.'sniifitiion of elec- 
trical power from CaiuuJa into the United States. 

Whereas under the provisions of an act of Congress approved J\me 29. 1906, 
entitled "'An act for the control and regulation of the Niagara River, for the 
j)reservation of Niagara Falls, and other purposes." it is provided that the 
Seci'etary of War may grant permits for the transnnssion of power from the 
Dominion of Canada into the United States and that it shall be not lawful to 
transnnt electrical power into the United States from Canada except in accord- 
ance with the pennits so issued by the Secretary of War. 

Whereas ui)on the apidications. hearings, reports, and all the jn-oceedings by 
applicants for pernnts. imder the i)rovisions of the said act. tlie Secretary of 
War. under date of .January 18. 1907. tiled a written opinion directing, among 
other things, tliat a permit be issued to the Niagara, Lockport & Ontario Power 
Co. for the transmission of 60.000 electrical horsepower from the Dominion of 
Canada into the United States. 

Now, therefore, this is to certify that the Secretary of War hereby gives per- 
mission to the Xi.igara. Lockport & Ontario Power Co. to receive from the 
Ontario Power Ct.. <>f Niagara Falls, at the international boundary line, and to 
transmit into the United States. 60.000 electrical horsepower upon the following 
terms and conditions: 

First. So long as the Niagara. Lockport & Ontario Power Co. shall procure 
from the Ontario Power Co. of Niagara Falls the right for the Chief of En- 
gineers, or his representative, to enter uiion the i)roniises of the Ont.irio Power 
Co. of Niagara Falls and to inspect and verify their records to the satisfaction 



PEESERVATION OF NIAGARA FALLS. 307 

of the Chief of Engineers, and so long as the amount of power transmitted to 
Ihe United States does not exoeeti To fHrr cent of the amount lierein authorized, 
the measurements necessary to insure compliance with the terms of this i)erniit 
shall be made at the expense of the grantee at the station of the Ontario IVnver 
Co. of Niagara Falls, due allowance being made for losses between the me..suring 
station and the international boundary line. 

Second. When the amount of power transmitted to the United States under 
the terms of this permit exceetls 75 i)er cent of the authorized amount, or if the 
right of access or examination to the satisfaction of the Chief of Engineers is 
declined or refused at any time by the Ontario Power Co., the measurements 
necessary to insure compliance with the terms of this permit shall be made at 
suitable points in the United States near the international boundary. 

Third. When under either of the conditions above named the power imjiorted 
is measured at the points in the United States, such measurements shall be 
made by continuous record indicating wattmeters of approved design, to be fur- 
nished, installed, and maintained by the grantee; continuous records shall be 
taken on each independent circuit entering the United States; the meters siiall 
be kept in efficient condition, and the records shall be sub.1eot to iusiJeclion at 
any time by authorized inspectors of the United States. 

Fourth. Except as noted below. 60,000 electrical horsepower* represents the 
maximum load that can be brought into the United States at any time under 
the terms of this permit. 

(a) Momentary indications in excess of the authorized amount, due to short 
circuits, grounds, etc., will not be considered as violations of the permit. 

(&) Peaks of lead curves due to overlapping loads w'ill not be considered as 
violations of the permit, providetl the duration of any one such peak, measured 
on the 60,000 horsepower line, does not exceed 1 hour, and provided that the total 
duration of such peaks in 24 hours, measured in the same manner, does not 
exceed 2 hours. 

Fifth. Maps or charts, verified to the satisfaction of the Chief of Engineers, 
shall be tiled with the Chief of Engineers, showing the exact locatioii of all 
lines or circuits over which the power is transmitted into the T'nited States 
luiuer the provisions of this pernut ; and no change shall be made in such lines 
or circuits without submitting at the same time to the Chief Engineers or his 
rei>resentative a map or chart showing such change 

Sixth. One of the objects of the law being the preservation of the natural 
scenic conditions of the Falls and the gorge. It is stipulated that the grantee 
shall, either dii'ectly or through the Ontario Power Co.. take steps to restore 
the natural growth on the sides of the gorge at the point where power is now 
brought into the United States. 

It is further stipulated that no additional power crossings shall be under- 
taken until the plans therefor have been approved by the Secret^iry of War. 

Seventh. The Secretary of War reserves the right at any time to motlifv the 
form of this i)ermit, to change the method or plan of jneasurements herein ])re- 
scribetl. or to substitute other methods of measurement, whenever in his judg- 
ment, such modifications, changes or substitutions are necessary to carry oui 
the provisions of the act of June 29. 11*06, under which this permit is issued. 

Witness my hand this sixteenth day of August. 1907. 

Wm. H. Taft, Secrctdiif of W<ii-. 

Extended September 2, 1911, to March 1, 1912. 



ADDITIONAL STATEMENT OF MR. COHN. 

Mr. CoHX. I believe I had better say for the benefit of Congre>^s- 
iiian Cooper. Avho raised the question the other day. that there is posi- 
tively no disi^osition to keep the diversion down below the limit of 
10,200 cubic feet, that would prevent anyone else from getting a 
permit under the existing law. 

Mr. Garxei!. Major, will you give the committee an estimate of 
what it Avould cost your department to supervise the taking of water 
on this side and the importation of power from Canada? 



308 PRESERVATIOX OF NIAGARA FALLS. 

Maj. La Due. I would not like to hazard an estimate now, espe- 
cially without knowing how far the supervision would go. AVe have 
spent about $27,700 since the Burton laAv went into effect, but a very 
large part of that sum went into these very elaborate investigations, 
wliich were necessary in the beginning and Avhich are reported in 
these two documents. 

There will be no such elaborate investigations to undertake now. 
It will be a question of supervision only, and the cost will be less, but 
how much less I would not like to sa)^ I think it would be well to 
reappropriate the unexpended balance of the appropriation made by 
the Burton Act. 

Mr. Garner. After your investigations were made under this law, 
for instance, the continued annual expense would be about how much? 
The stationing of an officer there, would that be the expense? 

Maj. La Due. "We have not had an officer stationed there; we have 
one or two inspectors who go up there as needed. So far as that fea- 
ture of it goes, it would probably be only the salary of one or two men. 

Mr. Garner. A veiy nominal expense, then, after j^ou had made a 
tiiorough examination under this provision of the bill? 

Maj. La Due. A nominal expense. Of course if any especial inves- 
tigation becomes necessary, we will have to send parties there. In 
December last it became evident that the Hydraulic Co.. owing to 
the improvements they had been making in their plant, was approach- 
ing its authorized limit of diversion, so we sent a party there — just 
how large a pai-ty I do not know. This party made measurements 
and established a rule to govern the operations of the company and 
fix the limit of their output. 

The Chairman. If you have anything further you wish to incor- 
porate in your statement, you have that pri^nlege. 

.srPl'I.KMF.NTAKY STATKMKXT OF UV.y . FliANClS V. GREENE. 

.Mr. ("lialrmaii, yoiu" committee has listennl witli very great patience ou six 
successive days to statements and arguments of more than 30 individuals, 
representing a great variety of interests — Members of Congress. State otficials, 
Chief of United States Army Engineers and his assistants, city officials, and 
rei)resentittives of commercial bodies, representatives of the American Civic 
Association, and representatives of power companies, both those which are in 
operation and those that have jilans. 

I'he discussion has taken a \ery wide range and has covered every ix)ssible 
tojtic in this connection — legal, scientific, connnercial. sanitary, or emotional. 

Now. out of it all it seems to me that four very serious questions have been 
presented for your consideration, namely, national defense, navigation, regu- 
lation of rates, and the scenic grandeur of Niagara Falls. I put that last, not 
because it is by any means the least important, but l>ecause it is the one con- 
cerning which there has been the greatest difference of opinion. 

With your permission I will try to rehearse as accurately and as briefly as 
possible .M summary of the testimony which has been given to you on these 
four points. 

First. .\s to national defense. One might wonder just how the question of 
national defense comes in with the diversion of the waters of Niagara River, 
and the theory of it, as I understand it. is that the river might have been 
drained dry, so that it would offer no obstacle to an invading army. In the 
remote and almost unthinkable contingency of a war with Great Britain or 
Canada — if such a thing should have hapi»ened; if Niagara River had been 
draine<l dry — our defense to that extent would have been injured or ruined. 
Now, on that question there is no conflict of testimony whatever. The only 
teslimony which you have is in these documents. The reports of the engineers 
stare that there had been no injury to the Niagara River as a means of na- 
tional defense. 



PRESERVATION OF NIAGARA FALLS. 309 

The next question — navigation — is a very serious one, and I shall try to 
choose my words with particular care so as to state the precise nature of the 
testimony in these reports and what has been said to you verbally in this com- 
mittee room. 

The engineers, that is to say. the subordinate engineers — and by this I mean 
the officer in charge of the lake survey in Detroit, and his assistants — have 
determinetl after most elaborate gauge measurements and computations of a 
very intricate, scientific character, that there has been a slight lowering in the 
level of Lake Brie. It is measured in fractious of an inch. It depends upon 
observations extending over a period of 20 days. Further observations may 
confirm the deductions already made or possibly may change them, but these 
results ai'e all that we have, and they are the best that we have at the present 
time. The channels of the Lakes are designed to have a depth of 21 feet. The 
effect of the wind and the waves is to change the level of the Lakes by many 
feet in a very few days, so that while the question of a fraction of an inch in 
the depth of the Lake Erie channels is not a thing, as these engineers reiiort, 
which should be entirely disregarded, but being so small in comparison with 
the depth of the channel, it is of no practical importance. Gen. Bixby testified 
as to this at the first hearing on Tuesday, January 16. I do not know that I 
need to tell you who Gen. Bixby is. He was at West Point with me. He is 
an officer of very great ability who has spent a lifetime — I think it is 35 years or 
more since he graduated — in studying these scientific questions, especially the 
questions of hydraulics and of navigation on the navigable waters of the United 
States. I do not think there is an officer in the Engineer Corps who is so 
peculiarly qualified to speak on these questions of navigation as Gen. Bixby. 
He has been secretary of the Mississippi River Commission. In 1906 he made 
the preliminary reports which farmed the basis of the recommendations of 
the International Waterways Commission at that time. Now. Gen. Bixby, I 
think, would not say that a fraction of an inch in the level of Lake Erie was 
a thing which should be neglected or disregarded, but I think he would say — 
exactly what he did say as I understood him when he testified — that the 
lowering of the Lake in comparison with the depth of the channel was slo 
slight that it was a matter of no practical importance. 

I think your committee can dismiss from your minds any uneasitiess about 
these two first proi)ositions — national defense and navigation. 

Now. in regard to the regulation of rates. As I look at it. you have ample 
authority to regulate rates, but it is a question of expediency, and the testimony 
which has been given here in favor of the regulation of rates comes from 
two individuals, and two only — Mr. Hammond, city attorney of Buffalo, and 
Congressniii.n Smith. Their allegation, as a basis for their request for Fed- 
eral interference, is that the public service commission is either unwilling oi- 
unable to cope with the situation, and therefore they ask the aid of the TTnited 
States Government to regulate the ])rice of electricity in Buffalo. Well. I think 
that if that question was submitted to the voters of Buffalo it would not have 
more than 10 per cent in the affirmative. There is dissatisfaction, as I under- 
stand it. about prices for electricity, and the chamber of commerce itself 
initiated proceedings for an investigation, but they initiated it in the way 
that the law prescribes, and they wish to bring it before the trbunal whicth the 
State of New York has provided to hear and determine such cases, and 
they are satisfied to abide by the findings of that tribunal. Now, I am told 
that this letter has been sent within the last two days by the chamber of 
conunerce to your chairman: 

•• Iteferring to report in newspapers that the statement has been made to 
yon that the public service conunisslon is unable to cope with the situation of 
charges by electrical companies for iniwer. I desire to say that that is not 
the opinion of this liody, and to express to you on the contrary that it be- 
lieves that the machinery devised and in successful operation for the control 
of public service corporations in general and of the electrical situation in 
particular is entirely adequate to deal with the subject, and it desires further 
to state that this is the general feeling in this community. 

"This body has originated and lU'omofed an investigation into the charges 
made in Buffalo for electrical power, which is now iKMiding. It desires to 
secure for its citizens a readjustment, and in many cases a retluction, cif present 
charges, and it is satisfied with the tribunal established by law to decide the 
issue." 

The chamber of commerce in Buffalo has ;i membership of more th.in o.OOO. 
It includes practically every man in any business of any magnitude in Buffalo. 



310 PRESERVATION OF NIAGARA FALLS, 

Aiuoug its members are the consumers of probably uiiie-teutbs of tlie power 
used in Buffalo, practically all of tlie power except that wbicb is used in 
private; bouses. Now. tbese citizens of Buffalo bave a dispute wiib a cor- 
poration under ilie laws of tbe State of New York as to tlie value of tbe jioods 
or services wliicli one sells and tbe otber buys. Tbe State of New York bas 
provided a tribunal to benr and decide sucb cases. It, of course, does not decide 
until il bas lieard botb sides. Tbe corporation and tbe consumer are l»otb 
willing to submit tbeir dispute to this tribunal. Tbe.v are botb citizens of 
New York. I submit tbat under tbese circumstances there is absolutely no 
ground to ask for Federal interference. 

Now, the remainiuij question, and frankly it is tbe most important question, 
is the i)reservation of tbe scenic grandeur of Niagara Falls. Certain gentle- 
men liave assumed to bave a mandate from tbe people to be the only guard- 
ians of Niagara Falls. Tbat mandate is not recognized universally. You bave 
beard testimony in regard to one corporation which moved its plant a mile or 
two up tbe river, and thereby lost efficiency, solely for tbe purpose of preserv- 
ing tbe scenic beauty of Niagara. As to tbe companies that I represent, we 
baxe figured up and tried to ascertani about what it has cost us in order to 
make our works conform to the surroundings and harmonize with tbe grandeur 
of Niagara F.-Uls, and it is a little more than $1.0(K»,000 which we have spent 
for tbe purpose of putting our pipes in tbe rock instead of on the surface and 
of constructing buildings wbicb were tbe best that architectural skill could 
design : so that I can assure you for those I represent and. 1 think, for the 
otber power comiianies at tbe Falls tbat they regard tbe scenic grandeur at 
Niagara quite as much as some who claim to he the sole guardians of it. 

Now, no one bas api)eared ix'fore you to advocate in.iury of Niagara Falls. 
No one bas appeared before you to advocate J^be diversion of water on either 
side of tbe river to an amount wbicb, in his opinion, would injure the scenic 
grandeur of Niagara. The <mly question is, what is the limit to which the 
diversi(m can i)e cari-ied without in.iuring tbe l)eauty of tbe Falls. On that 
opinions differ, .•ind on tbat you bave bad different testimony submitted to you. 
I called attention at a previous liearing to tbe testimony given by eminent engi- 
neers in AiHH't that a diversion (tf 40 ]>ev cent of tbe total flow, or SO.OOO mbic 
feet per second, would not materially in.iure tbe Falls. Tbe Burton law, enacted 
as a result of tbat bearing. ]ilaced tbe limit at ir),0(M) cubic feet on tbe Ameri- 
can side, and by rest ric! ions on ti-ansn)ission from Canada it was apparently 
intended to indirectly linnt tbe diversion of water on tbe Canadian side to 
about tbe same amount, or some 30.0(10 to 3].<MX) cubic feet on l)otb sides, which 
is the amount which Ma.i. Ladiie bas .just told y<»u was tbe maximum taken out 
in the month of December. Now tbat you bave three opinions, tbe engineers 
in 1900 — and as to tbese engineers I would like to say tbat they bad l)een 
observing tbe Falls every day for four previous years; tlieir ottico windows 
looked on the Falls, and tbey were eminent hydraulic engineers — tbeir ojiiniou 
was SO,(X)0 cubic feet. V.'ben tbe treaty was negotiated it is a matter of com- 
mon reiiort tli.it during tlie is months that it was under negotiation tbe negotia- 
tors sought tbe best expert advice tbat tbey could get as to the amount of water 
that could be safely diveitetl without injuring tbe Falls. They fixed it at fiO.OOO 
cubic feet. The scenic society come here and now say that the treaty is wrong 
and tbey must bave additi<jiial legislation to jn-ovide tbat a less amount shall 
be taken out than tbe treaty iieimits. and in sni)]iort of tbeir position tbey cpiote 
from tbese documents. Now. 1 would like to say something ;ibout tbese two 
doc\iments wbicb jierbaiis ilic comuiitee does not understand. This volume, 
Senate 105, and the only one from wbicb tbe civic association bas quoted, is 
date<l November 80, T.lOS. This document. II. K. 240, is date<l September 30, 
1911. Tbe ejirlier document was tbe result of two years' observation: this is 
the result of five years' observation, and the Secretary of War describes it as 
"A comprehensive report of the operations of tbe I'nited States Lake Survey 
under the appropriation for the preservation of Niagara Falls from Jqne 29, 
1900, to June 20, 1911. wbicb sunujiarizes and supplements tbe previous rep<n'ts." 

Now, tbe quotations from Ibis larger report were correctly made, but tbey 
are only a part of what is said, and even in this larger report cjuotations coidd 
be made on tbe otber side. St)nie of them I bave incorporated in tbe printed 
statement which I file<l at a previous hearing. The statements in this repoi't, 
based on five years' study, are, to say the least, nnich more conservative, much 
less alarming than the statements in tbat report: and I refer in detail to tbese 
rei>orts because tbe <i\i( association rests tbeir c;ise on tbese reports— and 



PRESEBVATION OF NIAGARA FALLS. 311 

SO do we, speaking for the power companies which I represent — and I think the 
other power companies also. 

As the civic association has quoted these rejiorfs of suhordinate engineers I' 
lefer you to the final statement of Gen. Bixby, the Chief of Engineers, the head of 
the whole engineering organization, made in your presence a few days ago, and 
with all these .vports before him. His s'atement, I think, was that as to the 
diversion of 4,40<» ndditional cubic feet on the American side, it was so small 
an addition to the amount now being diverted that it would produce no appre- 
ciable effect upon ihe scenic grandeur of Niagara Falls: and as to the importa- 
tion of power from Canada, Congress can not in that manner control the amount 
of water to be taken out on the Canadian side. His s-atement was, and he 
repeated this three or four times, that the demand for power in Canada was 
growing so rai)idly that if it was not imported into the United States, in a very 
few years, in his opinion (I think he said three years) it will all be taken on 
the Canadian side: so that you can not preserve the scenic grandeur of Niagara 
Falls, even if it were in danger, by restricting these importations. Now, I am 
in position to give you some figures on this question of the growth of consump- 
tion of power in Canada which confirm Gen. Bixby's statement derived I have 
no doubt from a general study of the situation. But the specific facts are these : 
In the last three years the use of Niagara power in the United States has in- 
creased 50 per cent. In the same period the use of Niagara power in Canada 
has increased 400 per cent. Why, since the figures were made up in this report 
(Doc. No. 246) last July, the consumption in Canada has increased 20 per cent. 

On the question of scenic grandeur I say that you can not save the scenic 
grandeur of Niagara Falls, if it is in danger from Canada, by restricting the 
importation of power from Canada, because Canada will use it if it does not 
come to the United States. 

NoAv, I repeat that we rest our case on these documents. If cai'efully studied 
and considered they show that the scenic grandeur of Niagara Falls will not be 
endaugeretl by the diversion of the water provided for in the treaty. 

I submit to the conimittee that the testimony which you have heard in these 
elaborate hearings leads to legislation along these lines: 

The carrying into eftect of the treaty, the diverting of the anioimt of water 
on the American side which the treaty authorizes, and suitable provisions for 
supervision by the Secretary of War to see that the amount which the treaty 
authorizes to be divertetl is not exceeded. The question of who shall receive 
this 4,400 cubic feet pev second. I think, can best be decided by the proijer 
authorities of the State of New York, who will undoubtedly give very elaborate 
hearings before reaching a decision, in which the rights of all parties can be 
iu'ought out. As to imiiortiition the treaty is silent. It was designedly so. 
It was intended to give this country the benefit of all the power which Canada 
would allow to lie exported. There has been submitted nothing in the way of 
testimony before your committee to justify you in attempting to modify, 
abridge. <»r restrict this treaty. 

STATEMENT OF MR. WATROTJS. 

Mr. Watkous. The association which I represent would like the 
privilege, in view of the preceding argument, to read the brief which 
I presented this morning, which I did not present at that time. I 
shall ask the privilege of reading it at this time, as it is one based on 
this last report, which we did not get access to until last Tuesday. 

The Chairman. It is alreadj' in the record? 

Mr. Watrous. Yes, sir. 

The Chairman. That will do. 

Gen. Greene. The quotations from this larger report were cor- 
rectly made, but they were only a part of what was said, and even in 
this larger report quotations could be made on the other side. 

The statements from this report, based on five years of study, are, 
to say the least, much more conservative, much less alarming. I will 
not use the word *' sensational." The statements in that report — I 
refer in detail to these reports because the civic association rests its 
case on these reports and so do we. Speaking of my power company, 



312 PRESERVATIOISr OF NIAGAEA FALLS. 

the one that I represent, and I think the others, ^ye rest our case on 
those reports, but on a fair interpretation of them, and as the civic 
association has quoted these reports of the subordinate engineer. I 
refer you to the final statement of Gen. Bixby, the Chief of Engineers, 
the head of the whole engineering organization, made in your pres- 
ence a few days ago, and with all of these reports before him. I lis- 
tened very carefully, and I think his statement was this : 

As to the diversion of 4.400 additional cubic feet on the American 
side it was so small an addition to the amount now being diverted 
that it would produce no appreciable effect upon the scenic grandeur 
of Niagara Falls, and as to the impoi-tation of power from Canada, 
that was not a matter which Congress could control, so far as ulti- 
mately' controlling the amount of water to be taken out on the Cana- 
dian side is concerned, because, and he repeated this three or four 
times, the demand for power in Canada was growing so rapidly that 
if it was not imported into the United States in a very few years, in 
his opinion, and I think he said three years, I listened very carefully, 
it would all be taken on the Canadian side. So that you can not pre- 
serve the scenic grandeur of Niagara Falls even if it were effected 
by restricting this importation. 

Now, I am in a position to give you some figures on this question 
of growth of the consumption of ])ower in Canada, which confirm 
Gen, Bixby's statement, derived, no doubt, from a general study of 
the situation, but the specific figures are these: 

111 the last three years the use of Niagara power in the L'nitetl Slates has 
increased 50 i)er cent. In the same iK?riod the nse of Niasara |K)wer in Canada 
has inci'eased 400 i)er cent. Since those tignres were made u\> in this report of 
last Jnly the consumption in Canada has increased 20 ])er cent. 

Mr. DiFENDERFER. Is it uot becausc they are getting power cheaper? 

Gen. Green K. Whatever is the cause, I am speaking about the 
scenic grandeur. You say that we hired the newspaper people to 
raise this issue for scenic grandeur. 

Mv. Dtfenderfer. I said so? 

Gen. Greexe. Yes; it is hard to discuss such a proposition as that. 
But on the question of .scenic grandeur I say that you can not save 
the scenic grandeur of Niagara if it is danger, from Canada, by re- 
stricting the importation of power from Canada, because Canada 
will use it if it does not come into the United States. 

jNIr. DiFENDERFER. We have no control of that. I appreciate that. 

Gen. Greene. Now. I repeat that we rest our case on these docu- 
ments, fairly studied and considered. At any time the scenic gran- 
deur of Niagara Falls will not l)e endangered by the diversion of 
water provided for in the treaty. 

Mr. Sharp. In that connection I see the second document. Senate 
Document No. 105 and House Document No. 246. You api:)rove then 
more of the House document because it is several years later. Read- 
ing from that document on page 1.^ T find the following language 
used: 

The total chanj^es liave resulted in an appreciable decrease in iLe volume of 
flow there, due to the deficient depths at the end of the Falls, to a marked 
interference with the continuity and the lenjith of the crest line, unquestionably 
marring the beauty of this cataract. While natural causes haye been chiefly 
instrumental in effecting these changes, it api)ears indisputably that the arti- 
ficial diversion of the power companies h.-ivc mateiially aideil to the injury of 



PKESERVATION OF NIAGARA FALLS. 313 

interference with the scenic grandeur of Niagara Falls, and the additional 
diversions now conteuiplated will increase this damage. 

Gen. Greene. The natural causes have been the chief instrument. 

Mr. Sharp. But it very plainly states that we could not increase 
the diversion any more without damage to the Falls. 

Gen. Greene. That is the engineer's opinion, based upon the record 
of gages, which shows a less volume of water going over the Falls. 
He does not say that he can see any difference with his eye. 

Mr. Sharp. He does say in the same connection that after these 
observations had been made, which lie said were made under most 
favorable circumstances : 

The effect, then, of the total diversion and of the natural change of regimeu 
since 1906 will account for the lowering on the Canadian and Goat Island ends 
of the Falls, and the mean lake level is over 15 inches and 3i inches, respec- 
tively. The present return to the low stage of the Great Lakes is due to de- 
ficiency in rainfall and runoff has had the further effect at Terrapin Point 
of 2 inches. 

Gen. Greene. Due to three causes, lack of precipitation, wearing 
away of the apex, and diversion by the power companies. Three 
causes contributed to that. 

Now these photographs— have you even been to Niagara ? 

Mr. Sharp. Quite a number of times. 

Gen. Greene. Have you been there within recent years? 

Mr. Sharp. Not within five or six years. 

Gen. Greene. Do your photographs, taken last July, give you a 
different idea of the Falls from what 3'ou remember? 

Mr. Sharp. Not at all. 

(xen. Greene. That is the whole case. 

Mr. Sharp. There was a great mass of Avater flowing over there. 

Gen. Greene. There is a great mass of water flowing over there 
now. It is magnificent. 

Mr. DiFENDERFER. You stated that your company tried to preserve 
the scenic grandeur by placing your building in the rocks? 

Gen. Greene. Part of our structures. 

Mr. DiFENDERFER. Ar^ these faithful reproductions here in these 
books ? 

Gen. Greene. In what books? 

Mr. DiFENDERFER. Of the Niagara Power & Conduit Co. 

Gen. Greene. That is not my company. 

Mr. DiFENDERFER. What company — are you not interested in this 
company ? 

Gen. Greene. The Niagara Power Co.? 

Mr. DiFENDERFER. YcS. 

Gen. Greene. Not at all. 

Mr. DiFENDERFER. It looks to luc as though these buildings were set 
out on the plains. 

Gen. Greene. That is the other company. If you would like to 
.see our buildings, I have photographs of them. 

Mr, DiFENDERFER. I do uot sce any of the rocks, General. 

Gen. Greene. I said we put some of our structures there. 

Mr. DiFENDERFER. I understood you to say that you put your 
buildings there. 

Gen. Greene. Oh, no; I did not say that. I said our pipes, etc. 



314 PRESERVATION OF NIAGARA FALLS. 

Xow I submit to the committee that the testimony which you have 
heard in these eLiborate hearings leads to legishition along these 
lines. The carrying into etfect of the treaty, the diverting of the 
amount of water on the American side which the treaty authorizes, 
and suitable provision for supervision by the Secretary' of War to 
see that the amounts which the treaty authorizes to be diverted is 
not exceeded. The question of who shall receive this 4,400 cubic 
feet per second, I think can best be decided by the proper authorities 
of the State of Xew York, who will undoubtedly give a very 
elaborate hearing before they reach a decision, so that the rights 
of all of the people can be brought out. 

As to importation, the treaty is silent. It was designedly so. It 
was intended to give this country the benefit of all of the power 
which Canada would allow to be exported, and there has been. I 
submit, nothing in the Avay of testimony before your committee to 
justif}' you in attempting to modify, abbreviate, or restrict this 
treaty. 

iNIr. Sharp. I have before me the treaty. AMiat has it to say in 
regard to the duration of it.s terms? 

(Jen. Greene. It runs for five years. The treaty — 'ratifications were 
exchanged at AA'ashington May 5. 1910, and that is the official date 
of the treaty. The date when the ratifications were exchanged, not 
the date when it was signed. It was signed in 1909. 

Article XIV. The present treaty shnll he ratified by the rresident of the 
United States, etc. 

Mr. Garner. What have you to say to the suggestion of Congress- 
man Smith with reference to retaining in the Secretary of War the 
right to cancel permits after the Public Service Commission of New 
York would not give what the people considered reasonable rates. 
In other words, giving the Secretary of War — making the Secretary 
of War the appellate court as between the power companies and the 
Public Service Commission of Xew York? 

Gen. Greene. Do I understand you. a Democratic Representative 
from Texas, to ask me what I think of an appeal from the govern- 
ment of X'^ew York to the Secretary of War ? 

Mr. Sharp. Well, I was not advocating that: I was asking you 
what you had to say about it. 

Gen. Greene. I think it is a monstrous proposition, absolutely in- 
consistent Avith the dignity of the State of Xew York. That is my 
opinion and I am a Republican. 

Mr. Sharp. I wanted to see how far you Avere going to follow the 
doctrine in this direction in concentrating the power at Washington 
instead of the State of Xew York. 

Gen. Greene. There is no question whatsoever, under the decision 
of the Supreme Courts — I am not a lawyer, but I have got btisiness 
sense enough to tmderstand some decisions — that the United States 
has exclusive jurisdiction so far as it extends to navigation. This 
treaty has fixed a limit to the water to be diverted on the American 
side. The Federa^l authorities should see that that treaty is carried 
into effect. Beyond that we have nothing to do with. 

Mr. Dieenderfer. Do you believe that we are bound to allow these 
companies to take the limit ? 



PRESERVATION OF NIAGARA FALLS, 315 

Gen. Greene. I believe it is expedient to allow them to take the 
limit in view of the facts. 

The Chairman. Is not that a question for the Government to de- 
termine? 

Gen, Greene. That is a question for the United States. 

The Chairman. If the Secretary of War determines how much 
shall be taken, is it for the State to say who shall have it? 

Gen. Greene. Yes, sir; that is where the line is clearly defined. 
Navigation belongs to the United States. The Attorney General Avas 
here to try to preserve what he thought — ^I gathered — -what he thought 
were the immemorial rights of Ncav York, to preserve them from 
national legislation. 

The Chairman, I agree with the law as cited by the attorney gen- 
eral of the State of New York, 

Mr, Cooper, While this statement hj the civic association goes into 
the record, yet it would be brought more forcibly to the attention of 
the committee if the representative of that association could reply to 
these statements made by Gen, Greene by just reading these few 
pages, and I ask that that be done in justice to the association which 
he represents. 

The document referred to was read by Mr, Watrous. 

Mr, Curley, Can you tell me what membership your association 
has in the United States? 

Mr. Watroi s. I can tell you in this wa3\ Mr. Curley, It has some 
2,500 what we call annual members, but included in that are some 
700 or 800 affiliated societies, composed, we will say, of from 100 to 
1,000 members, representing several hundred thousand in the aggre- 
gate, 

Mr. Curley. What salary is paid the president? 

Mr, Watrous, No salary, 

Mr. Curley. Do you receive a salary ? 

INIr. AVatrous. Yes, sir; I am the only salaried officer of the asso- 
ciation. 

Mr. Curley, You are paid by the association? 

Mr, Watrous, Yes. sir, 

Mr, Curley. You are emploved permanentlv on legislati\e mat- 
ters? 

Mr. Watrous. No. sir; the legislative matters — Practically all I 
have done have been in attendance on these meetings; I am the ad- 
ministrative secretary with a great deal of work accumulating on my 
desk right now. 

The Chairman. Is there any other gentleman who desires to be 
heard this afternoon? 

Mr. Smith, I would just like to say in connection with that letter 
presented by Gen. Greene that so far as I know the chamber of com- 
merce has not held a meeting, and no individual has a right to send 
a conununication to this committee purporting to speak for that 
body. ^Yh\ was it not signed by the president and secretary if it 
was an official matter? 

Mr. Curley. I would like to ask Gen. Greene the date of that 
letter? 

Gen. Greene. I have not seen the original letter so I do not know. 
I understood that the letter had been sent to the chairman of this 
committee on January 24. 



316 PEESERVATIOX OF NIAGARA FALLS. 

The Chairman. I will state that I received the letter. 

Is there ai\y other gentleman here who desires to be heard ? If not, 
the hearings will be closed with the exception of hearing a gentle- 
man who will be here to-morrow morning at 10 o'clock. 

The conmiittee will now take a recess until 10 o'clock to-morrow 
morning. 

Thereupon, at 5 o'clock p. m.. the committee took a recess until 10 
o'clock a. m. to-morrow. January 27. 1912. 



CoMMrrTEK ON Foreign Affairs, 

House of Representatrtes, 

Tuesday^ January 23, 1912. 

The committee met at 10 o'clock a. m., Hon. William Sulzer (chair- 
man) presiding. 

The Chairman. The committee will hear this morning, Hon. 
Thomas Carmodv, attorney general of the State of Xew York, Gen. 
Carmody, you may proceed. 

STATEMENT OF HON. THOMAS CARMODY, ATTORNEY GENERAL 
OF THE STATE OF NEW YORK. ALBANY, N. Y. 

Mr. Carmody. Mr. Chairman, I wish to thank you and the com- 
mittee for the courtesy extended the Stat^ of New York in granting 
this hearing, so that the State could be represented, and to especially 
assure the committee of the grateful a[)preciation of this favor by 
the governor, who is particularly interested in the whole conserva- 
tion proposition. 

Our rights in this matter involved in the bill now l^efore this com- 
mittee, are somewhat intensified by the contemporary interest which 
the State of Xew York is taking in the conservation proposition. I 
need not tell you, I am sure, that for the purpose of formulating a 
policy, and for the purpose of asserting the rights of the State in 
hydraulic matters, the last legislature passed an act constituting what 
is called a conservation commission, with more particular reference 
to the administering of the surplus waters impounded by reason of 
the construction of the barge canal, and the impounding of waters in 
the streams and tributaries, for the purpose of feeding the barge 
canal. The proposition involved in the bill and in the administra- 
tion of the powers under it, is at present somewhat crude in the 
minds of the officials of the State, but we do stand upon this propo- 
sition, and it is one that it seems to me is not fully recognized by 
the bill pending before this committee. 

I have been shown two bills, one introduced by Mr. Smith, and the 
other by Mr. Saunders, both of Avhich seem to proceed upon the 
right claimed in the National Government to control and distribute 
the water power in Niagara River. I contend that that is an asser- 
ti(m of a poAver that the Government does not have. The Govern- 
ment has only such powers as the Constitution gives it, and in respect 
to navigable streams — and this includes border streams — that right 
is limited to the control of those streams for purposes of commerce 
and navigation, and f(jr military defense, neither of which i)urpose 



I 



PRESERVATION OF NIAGARA FAL/KS. 317 

i.s asserted, and Jieitlier of which is farthered by the bills before this 
Gomniittee. or by any legislation which Congress has passed, bearing 
n])on the Niagara Falls ])roposition. 

Now, it will not take me very long to state the position of the State 
of New York, and it will not take me very long to furnish to this 
connnittee the authorities upon which the State rests in basing its 
contention for what it will ask for when we are through. The State 
claims to be the owner of the soil to the center of Niagara River, and 
consequently the owner of the water that passes over the American 
side of the Niagara River, subject only to the right of the National 
Government to control the waters of that river for the purposes of 
na\igation and for military defense. The right which the State 
owns in this river is no different, according to the decisions of the 
courts, from its right in rivers that are entirely within its borders, 
that are navigable, and the legal status of that right is so clearly 
established by the decisions of our courts that it is unnecessary to 
more than refer to them for the purpose of establishing its correct- 
ness. Now. the treaty between this country and Canada, under which 
this bill is apparently drawn, undertakes to exercise some national 
power, the extent of which I can not understand. I think we all 
understand that the Govermnents, the parties to that treaty, have 
the i-ight to state their relative positions so far as the use and occupa- 
tion of that river is concerned, for the purposes of navigation and for 
military defense. 

That is alleged to be the purpose of the treaty, and there is notliing 
in the treaty that undertakes to carry out that power, which is the 
only power that our Government has to deal with that scheme, I 
am not assailing this treaty; I am just coming in a moment to what 
Congress is now asked to do under it. 

The treaty states tliat it is passed for the purpose of settling dis- 
putes between the owners or claimants on either side of the Niagara 
Eiver. Now, whatever the ownership of property on either side of 
the Niagara River may be, it rests, under the laws of the State, in 
either the State or some riparian owner, and is not a subject of na- 
tional supervision or contral. Now. the Burton Act, so called, under- 
takes to carry out specifically the powers that were intended to be 
conveyed by the treaty. l)y providing that we may take from the 
Niagara River a certain quantity of water — 15,600 cubic feet per 
second. We say that that is a subject \ipon which the National Gov- 
ernment has no right to legislate, except to go far enough to say 
that there has been released to the State of New York a certain 
quantity of Avater from our supervision and right of control for pur- 
poses of navigation and military defense: that when the Government 
has gone that far it has discharged its power and exercised the only 
governmental function which it possess, the only power which it has 
over the waters of Niagara River, and under that bill you have 
stopped where we ask you to stop in Avhatever legislation you recom- 
mend, namely, that when it is specified as to how much water may be 
taken from the river on the American side, thereby releasing the 
control of the National Government to that point; then that must go 
to the party that owns it under the laws of our State and Nation, 
namely, the State of New^ York. 

28305—12 21 -*; 



318 PKESKRVATION OF NIAGARA FALhS. 

Mr. Gaknki;. Geiieral, let us suppose that some Member of the 
House should disagree with you as to the power or control o^ver 
this water. AVhat is your idea about the policy of the Federal 
Government stepping in and undertaking to say to a State how and 
under what conditions it shall regulate hydraulic power. 

Mr. CARMooy. I say that is objectionable from two standpoints. 
In the first place it is the assertion of a power that does not exist, 
and it is undertaking to administer a policy that belongs to the 
State. It is made the right of the State in two respects, first, State 
ownership of said power, and, second, the right to administer that in 
trust for the common people. 

The Chair^max. That is fundamental. 

Mr. Garner. In reality it is an indictment against the State by the 
Federal Congress that it is not capable of conducting its own affairs. 
Mr. Carmody. Very truly that is so. The Burton Act goes further 
than that; it not only asserts the right to control the distribution of 
it, but to say who shall have it, and it provides that it shall only 
go to those owning the water power at the present time. In other 
words, it grants what, under the constitution of the State of New 
York, is an exclusive privilege. We are ai'guing against the folly of 
the National (Tovernment undertaking to exercise functions which 
it does not possess, and thereby invading the functions of the State, 
wherein the State has the means of administering, the right to ad- 
minister, and a vital interest in the result. 
Mr. Flood. What act does that? 
Mr. Carmody. The Burton Act, 
Mr. P^i^oD. The one that is on the statute books? 
Mr. Carmody. The one that is on the statute books now. We con- 
tend against the principle that the National Government has the 
right to distribute this water. Our position is that the National 
Government has the right to control the waters of Niagara River 
for purposes of navigation and for military occupancy, but for 
no other purposes; and where it does not restrict them for those pur- 
poses then the riparian rights are invoked, and those riparian rights 
mclude the right of ownership to the center of this stream and to 
the water that passes over it. 

Mr. Garner. What do you say to the proposition of the Federal 
Government having the right to formulate certain rules and certain 
conditions precedent to the taking of this water that the greatest 
amount of power may be derived from the use of it. For instance, 
I presume you will concede that the Federal Government would have 
a right to say that you could take only 20,000 cubic feet per second, 
and that it could designate the Secretary of War or some one else 
to see that that provision was adhered to. Could they go further 
and prescribe the engineering features of the plant in order to get 
the greatest power out of that 20,000 cubic feet? 

Mr. Carmody. Very clearly, they can not. Their function is sim- 
ply as was pointed out, to decide how much we may take, that does 
not injure navigation. When they have decided that they have 
exercised the only power they have under the National Government, 
and every other right over that water is in the State of New York, or 
in some riparian owner, if any rights have privately been acquired to 
the use of the water. The right to limit the cost to the consumer, or 



PRESERVATION OF NIAGARA FALLS. 319 

to regulate the question of engineering, is one that belongs to the 
State government. 

Mr. Cline. Do you concede that the Federal Government has the 
right to establish any limitation upon tlie diversion ? I think you do. 

The Chairman. There is no question about that. 

Mr. Carmody. Oh, yes. 

Mr. Cline. It has the right to grant or withhold to any extent 
that meets its own discretion? 

Mr. Carmody. Yes; and that discretion 

ISIr Cline. And would have the right to refuse any diversion at 

all? 

Mr. Carmody. Yes; in the exercise of this function. In other 
words, I think the proposition is more logically stated in this way, 
that the State may continue to enjoy its riparian rights until the 
Government desires to exercise its authority for the purpose of navi- 
gation or military defense. 

Mr. Cline. The Government will reclaim it by simply asserting 
that no diversion shall occur? 

Mr. Carmody. Yes, sir. 

Mr. Cline. It is your position that while the Government would 
have the right to grant or withhold in the discretion of Congress — 
that the Government can not impose any condition upon its exercise. 

Mr. Carmody. I say it can not. The Government can only decide 
now much can be diverted, and that is the only control the Govern- 
ment has over it. and then the rights of the State are asserted to the 
further control, and that is fully competent to deal with the question 
you raise. 

Mr. Cline. I understood that that is your contention? 

Mr. Carmody. Yes ; that is the contention. It comes to this point, 
further objection to the provisions of the Burton Act is idle, and I 
wish to assert it here — vou are familiar with the provisions of this: 
bill? 

Mr. DiFENDERFER. Uiidcr the treaty, is the Government not 
morally bound to stop the pollution of international waters? 

Mr. Carmody. The pollution? 

Mr. DiFENDERFER. YcS. 

Mr. Carmody. That, of course, comes under a different power of 
the National Government than the one we are discussing. 

Mr. DiFENDERFER. It would liave some control. 

IVIr. Carmody. The two Governments would have the right to agree 
upon some sanitary policy of controlling that question of the pollu- 
tion of the waters of boundai*y streams. 

Mr. DiFENDERFER. If the Government should go further and in- 
fringe, as you possibly would say, upon the riparian rights of the 
State of New York in order to stop pollution, would you think they 
would have any power? 

Mr. Carjiody. If it is a legal right, it must be founded upon some 
legal principle of Government. 

Mr. DiFENDERFER. The State of New Yor, as I understand it, has 
perfect health laws, has it not? 

Mr. Carmody. Yes. 

Mr. DiFENDERFER. Now, has the State ever made any exhaustive 
investigation of the waters of Niagara in regard to that question? 

Mr. Carmody. In what respect? 



320 PRESERVATION OF NIAGARA FALLS. 

Mr, DiFEXDF.RFKR. Ill this respect, as to whether scenic beauty has 
l>een destroyed? 

Mr. C'ARArooY. (),h, yes: that is a common topic of investigation 
and conversation and denunciation in the State of Xew York. It 
seems to be agreed by the popidace that lives there, and by the 
great mass of people who go there, that there has been no diminu- 
tion of its scenic beauty, and. as I am informed, there will b(^ none, 
if the State of New York is ])ermitted to divert the use of those 
20,000 cubic feet })er second. But no one will claim. I assume, that 
this (Tovernment has the right to legislate for the purpose of pre- 
venting and j^rotecting and enhancing the scenic beauty of property 
that l>elongs to the States. That is not alleged to be the ])urpose in 
the bill. It Avould not be a proper subject of legislation, for it is not 
in the Constitution. I know it has often been advanced, but I do 
not believe that in the face of the aesthetic sentiment, that anything 
will be done to decrease the glories of that stream, and we will all 
be glad to see something done, and perha]:)s we will close our eyes to 
the exercise of power, if it were a little arbitrary, if it would prevent 
an}' desecration of the Falls. Bear this in mind, that the State of 
New York has done and is doing much to preseiwe the beauties of 
the Falls. The sentiment that has grown up against the desecration 
of the Falls shows how the jTeople estimate the importance of pre- 
serving for posterity the grandeur of that most noble of Nature's 
Avorks. 

Mr. Flood. The (irovernment has exercised jurisdiction under the 
Burton Act for the past six years? 

Mr. Carmoov. Yes. sir. 

Mr. Flood. Have the power companies questioned the authority 
of the State of Ncav York up to this time? 

Mr. Cline. The truth is that the State government has fully 
acquiesced in this assumption of power. 

Mr. Carmody. Apparently the State acquiesces by not asserting 
it, and Ave found that the same thing was attempted to be done else- 
where in the State, and I am informed in other places, namely, the 
assertion of the right on the part of the National Government to 
control the hydraulic power of the States. We have in the Hudson 
River the same proj)osition. There is a specifi<' ap))ro])riation for 
the building of a dam in front of Troy, there having been one there 
for some time, where waters were impounded, and accomi)anying the 
])assage of the act were re])orts from the engineers of the War De- 
partment, recommending that the riparian rights should be turned 
over to the National Govermnent before the appropriation was made 
available, and incorporated in the appropriation Avas that condition 
that the ap])i'()j)riation is not available until the riparian rights have 
been exterminated, and the canal board undertook to do that by 
rescinding and canceling the existing leases for poAver. The present 
administration has taken a stand against that. They huva rcA^oked 
that resolution, and we stand upon this right, that the State of New 
York owns this Avater power, so that if there has been anj' acqui- 
escence in the State of NeAv York in that policy in the past, that is 
so no longer. 

Mr. Clixe. Was that not made a condition of the appropriation 
to improve the river, provided certain rights should be restored to 
the Government? 



FRESEKVATJON OF NIACiAKA J-WLLS. 321 

Mr. CAinioDY. Hardly that way, because it stated that a certain 
amount is directed to be used when the rights were exterminated— — 

Mr. Cline. a conditional gi'ant ? 

Mr. Carmody. Yes. That is simply asserting what is asserted in 
this bill, that the Government has the right to control the hydraulic 
resources of the State. 

Mr. Garner. The Government has the right to put a limitation 
on the appropriation, for the purpose for Avhicli it is to be used? 

Mr. Carmody. Very true. I am not questioning the exercise of that 
power, but there has been a policy to acquire the hydraulic power. 

Mr. Garner. You contend that if Congress had directly passed an 
act ordering the cancellation of these leases it would not have had 
that power? 

Mr. Carmody. Yes. Congress has no such power. 

INIr. (tarner. And that power Avas lodged in New York. 

Mr. Carmody. That i)ower was lodged in New York. The State 
of New York can not surrender it. It is lodged in the ])eople of the 
State of New York, and the Government holds it only in trust. It 
is a sacred right which belongs to the people, and we are dealing 
with something here, the principles concerning which can not be 
changed by any action taken here or elsewhere. Now, to get down 
to the point of my discussion here, to the assertion of the principle 
that I am maintaining, which I find is familiar to the members of 
the committee, I trust "there is no lawyer who has examined the legal 
principle I have asserted, nameh% that the 

Mr. Cline. There is no need to recite authorities on that propo- 
sition. 

Mr. Carmody\ Yes, sir. 

Mr. Cline. What relation do you bear to the State ? 

Mr. Carmody. Attorney general, and in company with Conserva- 
tion Commissioner Moore and Mr. Bacon, of the Attorney General's 
office. 

Mr. FiA)OD. Do you contend that the United States Government 
should not permit the Secretary of War to have supervision over this 
diversion in order to protect navigation i 

Mr. Carmody. I do not contend that the United States Govern- 
ment should not safeguard the releasing of its control in any way 
that may be proper. What I am contending against is the principle 
in that bill that we must ask the Secretary of War to give to us what 
belongs to us as a matter of law. He should be required, upon an 
application from the proper authorities of the State of NeAv York, 
it seems to me, to release the amount permitted to be diverted. I 
"would think that would sufficiently safeguard the rights of the 
National Government; that Avhen the proper authorities of the State 
of New York apply for the use of the balance of the power, 4,400 
cubic feet per second, which we ask you to grant up to the full limit 
of the treaty, that it shall be the duty of the Secretary of War to 
sign the permits, provided, in his judgment, it does not interfere 
with the uses of the National Government. 

Mr. Ci.ine. Is his judgement final on that question. 

Mr. Carmody. I think it is. I think that his power must be arbi- 
trar^^ It certainly can not be questioned b}^ the State if he chooses 
to say, " we need this for military defense or navigation," even 
though that may not be so. We can not question it. 



322 PRESERVATION OF NIAGARA FALI^. 

Mr. Garner. Let me oret a distinct understanding about that. 
Congress decides that 20.000 cubic feet per second can be used without 
injuring navigation. 

Mr. Cline. Fifteen thousand six hundred, in this case. 

The Chairman. That is the amount of water on the American side 
now being utilized. 

Mr. Garner. Congress decides that 20.000 feet can be diverted 
Avithout affecting navigation or the military defense and we lodge 
with the Secretary of War the power to grant a permit. Is it your 
contention that the Secretary of War should arbitrarily say he will 
not grant any of these permits for any of this water because in his 
judgment it would affect navigation or military defense? 

Mr. Carmody. T am arguing the opposite side of that question, 
because we claim we have the right to enjoy that water as a natural 
right, but the National Government has the right to control it for 
purposes of navigation. 

Mr. Cline. We do it through an act of Congress. 

Mr. Garner. Although the Secretary of AVar has the power to 
issue a permit, he would not arbitrarily fly in the face of Congress. 

Mr. Flood. You are making a concession to the other side. 

Mr. Carmody. I am not here to question the right of the National 
(Tovernment to do anything it believes it is doing in the interest of 
navigation. When you have passed that point 

Mr. Cline. When you make that concession, do you not minimize 
the rights of the State that you have been talking about? 

Mr. Carmody. Not at all. 

Mr. Garner. If I understand, your position is that Congress has 
the right to say whether there shall be one or twenty thousand cubic 
feet per second, but that after that the power of Congress ceases and 
the State's rights begin. 

Mr. Carmody. Yes. 

Mr. Cline. I think we clearly understand that. Here is my propo- 
sition : If you concede to the Federal Government the right to estab- 
lish the amount of diversion there, basing it upon the proposition 
that navigation will be affected or that the security of the country 
may be involved — if you concede that proposition, then the Federal 
Government has the right to authorize the diversion of 1 cubic foot 
or 20,000 cubic feet ; if the Government noAv has the right to fix the 
amount, is not the importance of your State rights reduced to a 
minimum ? 

Mr. Carmody. You have already stated how much may be diverted. 
I am starting in where you have stopj^ed. 

Mr. Clixe. But the Federal Government can at any time revoke 
the Burton Act. Is not that true? 

Mr. Carmody. Yes: but you have got to fight the riparian owners. 

Mr. Cline. What rights have the riparian owners? 

Mr. Carmody. The right of ownership. 

Mr. Cline. But what does the right amount to. if it is so difficult 
or impossible of assertion as you say? 

Mr. Caiok^dy. It is the right to enjoy, until you have deprived 
them of it. I do not see how you are going to hurt them. The}^ are 
drawing power from the river. You may say there can not be any 
power taken from the river, but you have got to settle that other 
question in another tribunal. 



PRESERVATION OP NIAGARA FAbLS. 323 

The Chaik.man. The Government has made a treat}^, which is the 
supreme hiAv of the land, and that treaty provides how much water 
can be taken by the Canadian Government and how much by the 
United States Government. The question before the committee is, 
who shall have the right to dispose of that water power, and whether 
there shall be any limitations upon its disposition, so far as the price 
of the power to the consumer is concerned. 

Mr. Flood. There is another question, as to Avhether the Govern- 
ment will permit the 20,000 cubic feet per second to be diverted. 

Mr. Cline. If diversion is permissible. 

JSIr. Garner. Let me aslv one question in connection with that. 
Suppose that Congress should decide that there should not be a single 
foot of water diverted on the American side, and should pass a law 
directing that none should be diverted, which would naturally seri- 
ously affect the power companies, would they have that right? 

Mr. Carmody. They have no such right. 

Mr. Garner. They outline in a bill that it is for the purpose of 
preserving the navigation in Lake Erie and pass a law prohibiting 
the diversion of another foot of water; you must assume they would 
have that power. Then, the only remedy that those companies would 
have would be a claim against the United States Government for 
such damage as might have occurred. 

Mr. Carmody. Or some legal proceedings. 

Mr. Cline. These are revocable permits, and would the Govern- 
ment involve itself in damages for doing what it is authorized to do? 

Mr. Garner. Some of these companies have been there for years 
and years, and have been given permits. 

Mr. Cline. They claim they derive the power from these permits. 

Mr. Carmody. Not necessarily, I believe. 

Mr. Cline. I should not want to concede that the only power we 
have is from the permit. 

Mr. Carmody. I would like to read the bill which we present here. 
It represents the idea of the State of New York in regard to this 
concession. [Eeading:] 

A BILL To givo effect to the fifth article of (he (reaty between the United States and 
Groat Britain, signed January 11, 1909. 

Be it enacicd by the Senate and House of Representatives of the United 
States of America in Congress assembled. In order to give effect to the fifth 
article of the treaty l>etween the United Stiites and Great Britain signed Jann- 
ary 11, 1909 : The United States hereby authorizes and permits the diversion 
witliin the State of Xew Yorlv of the waters of Niagara River above the Falls 
of Niagara, for power purposes, not exceeding in the aggregate a daily diver- 
sion at the rate of 20,000 cubic feet of water per second: Provided, however. 
That no water shall be diverted from said river at said point for power pur- 
poses except pursuant to written permits signetl by the Secretary of War, 
who is hereby authorized and directed to issue such permits for the making 
of such diversion to said amount, to the State of New York, upon application 
therefor by its officials, thereunto duly authorized. 

Said permits may be revoked by the Secretaiy of War at any time when in 
his judgment such revocation is deemed advisable for the i)roteftion of com- 
merce or navigation or for military defense. 

We contend that the bill recognizes the one right that the Govern- 
ment has and asserts the right that belongs to the State. 

The Chairman. We will carefufly consider the proposed bill. 



o24 PKKSERVATION OF X1.\(JA1!A FALLS. 

""Mr. I'"Lt)(»i>. The l)ill requires him to issue the permits, regardless 
of whether he mav think that if he issiie^H them they would be detri- 
mental to navigation or the public defense. 

Mr. CARMonY. He has the right to revoke them. 

Mr. Flood. Suppose, before he issued them he thought that to 
issue them would be detrimental to navigation or to the common 
defense. 

Mr. C'AK."sn)»v. Of course you have the right 

The C'HAiinLVX. In this proposed bill, as I understand it. he has 
the right to issue the permits. 

Mr. Cak^eody. He must issue them. 

The Chairman. Please explain the last part of the bill? 

Mr. Carmody. That relates to the revocation. 

S.iid iHTiiiits may hv revnki'd by the Sorivtary of War at any tiiin- when in 
his judKniwnt su<*h iev(»cati<Hi is deemed advisal>l;> for the i»rolc(|ion of .-oin- 
rnerce or navifrntion or for military defcnso. 

You have given him the only atithority he possesses by act of 
Congress. You authorize him to revoke permits. 

Mr. Flood. If this proposed amendment should be enacted, the 
Secretary of War would be compelled to issue the additional permits 
"notwithstanding he may l)olieve that in doing that a radical injury 
to navigation might result. At ]:)resent only lo.OOO rubic feet are 
being diverted. 

Mr. Carmody. I should think that would be in the disci-etion of the 
Secretary of War. 

Mr. (.^.iNE. Un(iue,stiomd)ly that is correct. 

Mr. Carmody. Therefore, "we contend against the provisions now 
before you. which places in his discretion the arbitrary power to 
issue these permits, and thereby deny to New York its proper rights. 

Mr. DiFENDERFER. As a matter of fact. Oeneral. there is not now 
diverted 15.C)00 cubic feet per second. It has been IH.HOO feet. 

Mr. Carmody. Yes. I desire to state further that the rights of the 
State are in entire harmony with the other rights. 

Mr. Flood. I do not so understand it. Mr. Difenderfer, from Gen. 
Bixby's statement. 

Mr. Garner. They were granted more, but only i:^.:>00 feet are 
being diverted at presen.t. 

Mr. Flood. P^leven thousand on the other side. 

Mr. Carmody. We claim that, for the purpose of carrying out the 
policy of conservation whicli the State of New York has adopted, 
that you have the power of deciding how this power should go. 

Mr. Clixe. I dislike to interrupt your argument, but how would 
you possess that power? 

Mr. Carmody. We have a conservation commission that now deals 
with the surplus water- that are impounded by the constrttction of 
the barge canal. 

Mr. Cline. Is that organized and operating? 

Mr. Carmody. Yes: some of the nuMubers are here. We do want 
to be permitted to exercise some control over the ))ermits granted and 
to fix a maximum jirice to the consumers of that power. We say 
that if the franchise is granted by the State of New Yoik. therefore 
the State has the right to limit the charge that the companies may 
make. We have no such right without contendiiig against the princi- 
ples which you have inserted in the r)urton Act. and we have nothing 



PRESERVATION OF NIAGARA FALL.S. 325 

to say ahoiil the manner in T\hicli that power, which is very im- 
portant to ns, is administered. 

Mr. Cline. I suppose the regulation of rights would he committed 
to your public-service commission? 

Mr. Carmody. Practically: but the administration of water power 
goes by specific provisions of our State law to the conservation 
commission. 

Mr. Garner. You have some idea with reference to the public opin- 
ion of your State in regard to the power of this commission to fix 
prices. 

Mr. Carmody. The conservation commission? 

Mr. Garner. The public-service commission. 

Mr. Carmody. I do not know much about it. It is certainly sus- 
tained by popular sentiment, and I think popular sentiment has asked 
to have it further extended to all corporations. I think the principle 
underlying it is popular and is growing in popularity. I believe. The 
control that comes in here, of course comes under another power of 
the National Government, and we have nothing to say about it. I am 
simply here to ask you to deal with us upon our natural rights and privi- 
leges as to this hydraulic question; but bear in mind that our interests 
are in harmony with those of every poAver company at the Falls. We 
are not going to confiscate anything: we are not going to de])rive them 
of any rights they have b\' reason of the riparian ownership or by 
reason of the terms granted by the Secretai-y of War. AVe want these 
4,400 cubic feet stripped of all these complications. AVe want you to 
realize that and to say to us, "• You may administer it, Avith the right 
in the National (Tovernment to reclaim." 

Mr. Garner. The people are interested in the questions of Avhether 
they should be permitted to buy their poAver in Canada, and you are 
also interested in the question as to whether the Federal Congress 
shall fix the price, or your ]mblic-service commission? 

Mr. Carmody. Yes. 

jMr. Garner. You are also interested in the question about the con- 
ditions Avhich shall be imposed upon power imported from Canada? 

Mr. Carjiody. AVe are interested, Imt I do not think they should be 
in the same bill. The transmission of current comes under another 
poAver from the exercise of your power here. Here you are dealing 
Avith the assertion of your right to control navigable streams. 

The Chairman. If it Avere not for the provision in the Burton Act 
limiting the amount of poAver to be brought into the State of New- 
York to 100,000 horsei)OAver. the Canadian GoA'ernment 

Mr. Carmody. The State of New York ought to be permitted to get 
a revenue the same as for any other franchise for this vast power 
AAdiich is being carried tAvo-thirds the Avay acrass the State. AA^c tax 
eAcry other corporation, and Ave can not touch that, because you haA'e 
said they can take it into our State and send it across the State, and 
charge the people as they see fit. You haA'e preA'ented our control 
OA'er matters that belong entirely to us. 

I thank you, gentlemen, and shall be glad to ansAver any other 
questions. 

Mr. Levy. You claim that the Secretary of AA^ar shall be jicrmitted 
to issue permits to exercise rights that belong to the State of New 
York? 



326 PRESERVATION OF NIAGARA FALLS. 

Mr. Carmody. I think lie should be compelled to issue them. 

The Chairman. To those designated by the State? 

Mr. Levy. That riofht belongs to the State of New York ? 

The Chairman. Yes. 

Mr. Carmody. When you say that we can take 20,000 cubic feet 
you have said all you can sa}'. The rest belongs to us. 

The Chairman. In your opinion, if Congress should pass this pro- 
posed bill submitted by you on behalf of New York, it will gi-ant to 
the State of New York all it desires? 

Mr. Carsiody. Yes. It may not be in proper form. I did not ex- 
l^ect to represent the State here, but we got our views together and 
that represents them. 

The Chairman. The State of New York, as I understand it, Gen- 
eral, is in favor of taking the maximum amount of water on the 
Americjin side that is provided for in the treaty? 

Mr. Carmody. Yes; we are. 

The Chairman. In your opinion that would not destroy the scenic 
beaut}- of Niagara Falls? 

Mr. Carmody. We are very sure about that. 

The Chairman. The State of New York has no objection to wip- 
ing out the limitation now imposed by the Burton law as to the 
amount of power coming in from Canada. All the State of New 
York wants is the power to regulate the price to the consumers. 

Mr. Carmody. Yes. 

The Chairman. There being no Federal act prohibiting it, the 
State would have the right? 

Mr. Carmody. Yes. 

Mr. Garner. I just want to ask you, supjjose the Burton Act was 
repealed — it expires on the 1st of March — and Congress did not pass 
any law with reference to the importation of power from Canada, 
they would have, under the general law, the right to bring in that 
power ? 

Mr. Carmody. Not without the permission of Congress. They 
could not get in here and exercise a franchise, it seems to me, cer-" 
tainly not with the permission of the State of New York. 

Mr. Garner. There is no law on the statute books which I know 
anything about prohibiting the importation of power from foreign 
countries. When they get in, it would be under the jurisdiction of 
the State of New York, so if Congress does not say a word about it. 
New York would have just what it wants. 

Mr. Carmody. We would have this complication, that the Constitu- 
tion says that no State shall interfere with interstate commerce, or 
make laws 

Mr. Garner. Then your contention is that it would take an act of 
Congress to give your State jurisdiction? 
Mr. Carmody. That clears away that right. 

Mr. FiA)oD. Would it not be rather difficult to fix prices, when the 
public-service commission could not go into Canada and find out 
the cost of production? 

Mr. Carmody. You are asking me something that is in regard to an 
administrative matter, not legal. 

Mr. Cline. Suppose Canadian operators should refuse to disclo.se 
the information? 



PRESERVATION OF NIAGARA FALLS. 327 

Mr. Carmody. I think we would reciprocate — I think the law of 
reciprocity would be quite effective. We would say you can not 
transmit your power. 

Mr. DiFENDERFER. Sucli a decision as that would be in favor of 
Canada. Canada would be benefited, 

Mr. Carmody. I would not want that kind of benefit. 

Mr. DiFENDERFER. AVould uot the effect be this, that if they kept 
the electricity they manufactured on the other side, it would encour- 
age factories being built there, because of the fact that they could 
produce power and sell it to these companies very much cheaper than 
on the American side? 

Mr. Carmody. It may be so. 

Mr. DiFENDERFER. Then would it not be to their benefit to keep 
their power? 

Mr. Carmody. I think it is beneficial to them to come over and 
charge their present prices. 

Mr. Flood. Have you considered the provision in the Smith bill 
in section 2, in reference to the limitation on the charge on power 
imported from Canada? 

Mr. Carmody. I have not given any particular attention to it, be- 
cause I am not here to discuss the power question. There is another 
department of the Government whose territory I do not wish to 
invade, which deals with that. 

Mr. Sharp. A^^iat would be the position of the State administra- 
tion toward the governing of rates of this imported power, should 
that be consented to? 

Mr. CARiNroDY. As I said, the public service commission is the de- 
partment that deals with that. I have no authority to speak for 
them here. I do not know what their polic}^ woidd be. 

Mr. Sharp. Do you understand there would be competition be- 
tween the power imported and the power on this side of the line? 

Mr. Carmody. I am not prepared to speak on that subject. I do 
not want to be put in the position of expressing the views of an 
administration for which I have no authority to speak. 

Gen. Greene. You have stated that the power from Canada is 
lieinir transmitted two-thirds of the way across the State. Is your 
idea that a foreign corjioration transmits that power? 

Mr. Car^iody. It is transmitted from Canada, from a foreign 
country. I undertook to answer some questions here in regard to it. 
^\liat i have tried to say is that the State of New York should have 
the right to regulate the transmission of that power across the State, 
and control the price of distribution. 

Gen. Greene. The State of New York has that right at this 
moment. 

The Chair:man. I think so — especially to regulate the price to con- 
sumers. 

Mr. Carmody. It would have, if the National Goveniment 

Gen. Greene. The power is transmitted two-thirds of the way 
across the State by a New York corporation. The corporation pays 
all the taxes which the present laws impose; it is subject at every 
point to the regulation of the public service coumiis-ion ; it has 
been before the public service commission in many matters and has 
always complied with its orders. Was there not a law. prior to the 



328 PRESERVATION OF NIAGARA FAI.LS, 

passage of the Burton Act, which made it illegal to bring power 
from Canada ? 

Mr, Caraiody. There was not any law. I believe. These people 
were enjoj^ing that power on the Niagara River without asking any 
permission from the National Government at all. 

Mr. FosTEK. Is not this about the situation, with reference to this 
(juestion of the importation of electricity? You treat that as part 
of the foreign commerce over which Congress has control? 

Mr. Carmodv. Yes. 

Mr. Foster. That is. Congress has the sole power to regulate it? 

Mr. Carmody. Yes. 

Mr. Foster. Now, when that electricity cmce reaches the hands of 
the importer; that is. once reaches the consignee on your side of the 
line, then does not the authority <>f Congress absolutely cease, with- 
out any law ? 

Mr. Cakmouv. It certainly does. 

Mr. Foster. So that if a New York company imi)orts it from 
Canada, we have the right to regulate the importation of it, but just 
as soon as it reaches your New York company, then, without any 
law on the subject, our authority ceases. It is analogous, is it. 
not 

Mr. Car.^iody. The only diti'erence comes when you go further and 
undertake to say to the State of New York, as you have said to this 
power company, Avho shall have that privilege, then we say you are 
going beyond the powers of Congress, and you are invading the 
rights of the State. 

]Mr. P^osi'TiR. My point is that it ceases to be foreign conunerce as 
soon as it reaches the hands of the consignee on your side. 

Mr. CAH:N[onY. "We should be permitted to regulate its transmis- 
sion. 

]\Ir. Fos'iTCR. AVe can not take it away from you. 

Mr. Carmody. You may have no right to take it from us. but I 
{im arguing against your undertaking to do something here which 
you have not any power to do. 

Mr. Garner. I understood the Attorney General to contend the 
only reason why Congress should pass any law touching the question 
of the importation was because of the danger that a Canadian com- 
pany would bring across the power and deliver it in this country, 
and it being interstate commerce the State of New York would not 
have any control over it. 

Mr. Carmody. Yes. 

Mr. Foster. My point is that as so(m as it reaches the consignee 
in the State of New York we lose ccmtrol over it. unless it goes out- 
side the State of New York. It is analogous to this liciuor question 
that we have with us, like the poor are. always. 

Mr. Garner. To illustrate then, take a concrete proposition. Sup- 
pose a power company in Detroit. Mich., should undertake to carry 
power into New York, or a power comj^any in Canada should come 
across the line and take it into New York, it would be interstate 
traffic Avhich the State of New York could not reach, and therefoi-e 
it is necessary for Congress to turn over this ])Ower to j-egulate the 
prices and the conditions of interstate traffic in this power to the 
State of New York. 

The Chairman. General, have vou concluded? 



PKKSKHVATION OK NFAGAKA FAIJ^S. 329 

Mr. Cai{:viod^-. That is nil I care to say, unless there are some other 
questions. 

Mr. Bkow >K of ^Minnesota. Simply to enforce attention to that 
which I assume to be a well-known fact, do you not understand that 
all the disti'il)utin<r companies on the American side, including the 
companies that take from the Ontario company, all the distributing 
companies, the companies that deal with the consumers on the Ameri- 
can side — that those are American companies? 

Mr. Cahiviody. You are speaking about the water-power companies? 

Mr. Broa\xe. Those are New York companies? 

Mr. CxViaiODY. Yes; those on this side are. 

Mr. Browxe. Those on this side Avhich receive power from Can- 
ada — the}' deal with the consumers — they are New York companies 
upon this side who take power from the other side. Thei-efore, would 
it not be true that as to distribution, rates, and everything- else be- 
tween the distributing company and the consumer, the State of New 
York would have the power to regulate the I'ates? 

Mr. Car:modv. The State should have the power. 

Mr. Browne. Does it not have it without any act of Congress? 

Mr. Carmody. It would have it. but an act of Congress Avould 
seriously interfere with that power. 

Mr. Browne. Is it not your idea if Congress should attem])t ta 
interfere with this importation, in giving to certain particular speci- 
fied companies the right to import, it would be worse for the State 
of New York as though Congress said nothing, because it might 
work out as an interference with New York's rights? 

Mr. Car^iody. Congress has the right to regulate it under the 
power to regulate interstate commerce. 

The Chairman. Mr. Moore, one of the conservation commissioners 
of the State of New York, is here. We shall be glad to hear from 
Ml". jNIoore. 

Mr. MooRE. The attorney general has spoken for the conservation 
commission. 

The Chairman. Very well, then w^e will hear from Hon, Clark H. 
Hammond, coi'poration couusel of Buffalo. 



COMAIITTEE OF FoREECiN AfFAIRS, 

January ^'/, 19P2 — 10 o'clock a. in. 

The committee recon\ened. pursuant tio taking of recess, at 10 
o'clock a. m. 

The Chahjman. The committee took a recess yesterday for the 
pui'pose of-liearing Mr. Blackstock this morning. I understand Mr. 
Blackstock is here and desires to go on and Ave will now hear from 
him. 

STATEMENT OF GEORGE H. BLACKSTOCK, REPRESENTING THE 
NIAGARA FALLS ELECTRIC TRANSMISSION CO. 

Mr. DiFENDERFER. Is vours a Canadian company'? 

Mr. Blackstock. Yes, sir : under the provisions of the Burton Act. 
Mr. Chairman, there Avas distributed amongst the Canadian com- 
23anies a certain percentage of the poAver w^hich the provisions of the 



330 PRESERVATION OF NIAGARA FALLS. 

act enabled to be imported into the United States from Canada. Our 
share of that 125.000 horsepower was 46,000 horsepower, the balance 
being distributed between the Ontario Power Co. and the Canadian- 
Niagara Power Co., which is a branch of the American-Niagara 
PoAver Co., and a .small insignificant block allotted to the Inter- 
national Railway, which operates the line on citiier side of the 
Niagara River. 

A^'e are interested in preserving the rights of the Niagara Falls 
Electric Transmission Co. with referejice to their proportion of the 
poAver. of the Ki.OOO horsepower, which has been allotted to them by 
the permit of the Secretary of War. We desire to appear before the 
committee because we iinderetood that some time during the discus- 
sion some question had been raised as to why the 46,000 horsepower, 
which we are entitled to transport to the United States, had not been 
exported, and we desired to represent to the committee that that 
resulted from the circumstances and certain difficulties which we 
had with reference to transmission. We procured the incorporation 
of a transmission company at Albany and also acquired the fran- 
chise of the Niagara Falls Lighting*^ & Power Co., or rather the 
Gas & Electric Lighting Co., and have altogether spent in the 
neighborliood of a half a million dollars in order to put ourselves in 
a position to transmit the amount of energy whicli the permit of the 
Secretary of War entitles us to import into the United States. 

Now we are completing our arrangements with reference to that. 

In the meantime, of that amount, 12,000 horsepower have been 
transmitted from time to time to the Buffalo Cataract & Power Co. 
for use there, and which has been used in connection with the light- 
ing of the city of Buffalo, and to some extent has been used as a 
reserve power, and has been very efficient for that purpose, and our 
only obje<;t in appearing before the committee is to prevent any 
misapprehension on the part of the committee as to the nonuser of 
the balance of their power. 

It is the intention of the company to vigorously place that at the 
disposal of any persons who might desire to have access to it. 

Mr. Cltne. You are purely a transmitting company, or do you 
generate power? 

Mr. Blackstock. No; we are a generating company. And we 
desire to put ourselves into a position to maintain our business and 
to import the 46,000 horsepower which the permit of the Secretary 
of War enables us to do, and in furtherance of that we are entering 
into arrangements now with the company about to start an impor- 
tant plant at La Salle, by which we shall sell to them 12,000 horse- 
power, and up to the present time we have answered any demands 
that have been made upon us for power in the United States to the 
extent of 12,000 horsepower, to which I liave referred. We are now 
making arrangements which will enaljle us to import the balance of 
46,000 horsepower as and when it may be required. Of course, as 
you will understand, it is necessary for us to have the tenants of 
the power in sight, because we have got to make our transmission 
arrangements conformably to the exigencies of these tenants when 
they appear, and we are now making arrangements with reference 
to the company at La Salle, of which I have spoken, and also carry- 
ing out the arrangements that we have made imder the powers 



PEESERVATION OF NIAGARA FALUS. 831 

vested in us by the acquisition of the Niaj^ara Falls Gas and Light- 
ing Co. 

We desire to ask the committee to bear in mind that we have the 
fullest interest in maintaining the permit given to us by the Secre- 
tary of War and intend to use it as we have opportunity to do. 

Mr. DiFENDEKFER. I would just like to ask a question. You can 
at any time refuse, can you not, to transmit power to the United 
States? 

Mr. Blackstock. I think so. 

Mr. DiFENDERFER. In the event of industry being created there 
for the use of power, it would be to your advantage to use it at home, 
would it not ? 

Mr. Blackstock. Well, I should have thought not, sir, if it were 
in the immediate area of Niagara Falls. 

Mr. Dife>:derfer. Are you associated in any way — that is, your 
company — with transmission of power to Windsor? 

]\[r. Blackstock. No. 

Mv. Djfenderfer. That is another company? 

]Mr. Blackstock. That is another company; yes, sir. We have no 
transmission. Our transmission is practically^ to Toronto. 

Mr. Difenderfer. Then you have no connection, have vou. with the 
Hydro-Electric Co.? 

Mr. Blackstock. None whatever. 

The Chairman. I understand Mr. Bowne desires to make a brief 
additional statement. We will hear him now. 

STATEMENT OF MILLARD F. BOWNE, REPRESENTING THE LAKE 
ERIE SANITARY CANAL CO. 

Two eminent engineers have stated that the diversion already made 
will not affect the beauty of the Falls. Maj. Charles Kellar,'of the 
Corps of Enginers, reports in one paragraph this : 

■\^'bile the preceding conclu.sioii jis to the effect produced upou the Falls by 
the existing diversion is a statement of opinion based upon ascertained facts, 
the interest of justice seems to demand the further statement that in my 
opinion the damage already done, and that which may be anticipated from 
further diversion and from the impending fall in the level of I^ake Erie, 
may be largely, if not entirely, remedied by a submerged dam placed in the 
bed of the river immediately above the Horseshoe Falls. The dam as proposed 
and planned would serve to change the direction of the flow so as to increase 
the streams that feed the falls at Terrapin Point and at the Canadian shore. 
The decrease in the mighty volume that overflows the center of the apex of 
the horseshoe would not be noticeable. If built, the dam should be paid for 
by the interested power companies, but Canada and the United States should 
do the actual work under some form of international agreement. A very direct 
result of the construction of this submerged dam would be a diminution in the 
rate of recession of the apex of the horseshoe. This result is extremely desir- 
able. (P. 15, S. Doc. No. 105, Rept. of Maj. Charles Kellar.) 

The other engineer referred to as having a plan is the one con- 
nected as the chief engineer of our company, Isham Randolph, of 
Chicago, who was invited last year by President Taft to present his 
plan to the Canadian authorities, and that is to stretch two cables 
across from Goat Island to Canada above the Horseshoe Falls, and 
use these cables for transmission of reenforced concrete blocks, fas- 
tened together, immense, large, and heavy concrete blocks, and drop 
these blocks into the channel, into what is called the Chorwick above 



332 PKESERVATIOM Oi" MAGAKA FALLS. 

Horseshoe Falls, where the recession is very dangerous and continues 
year by year and may result in irreat (laiiiatje. The dropping' of tliost^ 
blocks into the deepest part of the center of the Horseshoe Falls will 
diifuse tbe water to both sides toward the edge of the Falls and 
without aliecting the beauty of tlie center it will increase the beauty 
of the sides. 

As Mr. Randolph has said, and give even further amount of v^ater 
for commercial purposes Avithout affecting the beauty of the Falls. 

Now, those are a partial answer, if not complete answer, to the 
complaints of the civic association, which has maintained that there 
will be irreparable damage to the Falls. 

CLOSING SUMMARY BY ROME G. BROWN IN BEHALF OF THE 
NIAGARA FALLS POWER CO. AND CANADIAN NIAGARA CO. 

Mr. Chairman and gentlemen of the committee: After listening to 
Gen. Greene's admirable suunnary of the facts shown at this hearing 
and of his logical conclusions therefrom, I felt that little if anything 
could be added to emphasize the ju.stice of the i)osition which is here 
taken by the companies Avhich 1 represent. However, despite the 
indisputable facts which have been shown, soine of the questions 
which have been asked and quite a number of statements that have 
been made during the hearing, would indicate that there is still some 
misapprehension in regard to the attitude of these companies toward 
the questions which are before you. Let me, therefore, briefly sum- 
marize certain of the ])oints. 

The SiTLATiox of The Xia(;ara Falls Power Co. 

ThivS company has certain vested property rights by virtue of (1) 
its riparian ownership, (2) its grants by the next lower riparian 
owner, the hydraulic company, and (3) patents and grants from the 
."^tate of New York, which State is ri])arian owner below, both it and 
the hydraulic compaiw, and which State also holds whatever sov- 
ereign interestvs there are of use or control in the waters of Niagara 
River upon the American side, subject only to the sovereign right 
of the Federal (rovernment to prevent uni'easonable interference w ith 
luivigation. These property rights, as clefinetl by the law and as 
described in the various grants referred to, include the right to take 
from the Niagara River above the Falls a quantity of water sufficient 
to make 200,000 horsepower and to discharge the same below the 
Falls by means of a tiumel passing by and through the lands of the 
two lower owners: that is, of the hydraulic compan}^ and of the lands 
of the State of New York u.sed for a park. These rights were ac- 
quired previous to the year 1900, and a plant had been constructed 
and put in operation, requiring them, as it now does, at least 10,000 
cubic feet pei- second of water to operate the same on an economical 
basis, altiiough that quantity is not sufficient for its maximum ca- 
pacity. It was thus operating that plant for years before the passage 
of the Burton .\.ct in 1906, but since the passage of that act has 
drawn only ^.(H)0 cubic feet ])er second, submitting temporarily to the 
terms of that act until the treaty should be made, as contemplated by 
(hat act, adjusting between the two countries the matter of diversion. 
]t claims to operate by virtue of its riparian rights, although permits 



PRESERVATION OF NIAGARA FALLS. 333 

under the Burton Act luive been accepted and complied \vitli, relying 
upon the faith that its rights and equities would be recognized in the 
final adjustment of the matter under the terms of the treaty. The 
Treaty of 1U09 recognized the injustice of the restrictions of the 
Burton Act, as neither expedient nor necessary to preserve scenic 
grandeur, and as unjust and inequitable to this company, and fixed 
tlie limits of diversion at a quantity which would allow this company 
J, 400 cubic feet per second more and the hydraulic company 3,000 
cubic feet per second more and thus allow each company to operate 
at its normal economical capacity of 10.000 cubic feet per second for 
this company and 9.500 for the hydraulic company. No other power 
plants exist on this side and none could be constructed for the purpose 
of utilizing the 4,400 cubic feet per second increase provided in the 
treaty over the 15.600 fixed by the Burton Act as the total diversion 
on this side, the additional quantity being too small to warrant the 
expense of an}' new plant. 

Tt has been assumed and stated in newspaper articles, in statements 
by representatives of the civic association, and even by a Senator of 
this Congress (in a statement made in public while these hearings 
were in progress), that this company is asking for an unreasonable 
increase in the amount of diversions allowed on this side with the 
intention of further installations in order to utilize such increase, and 
that its position here is one of a further " attack " upon the scenic 
grandeur of the Falls. You gentlemen who have heard the facts here 
know this is not true. The treaty fixes the total limits of diversion 
upon this side so as to forbid any further installations than had been 
nuule jirior to the Burton Act. Although this company claims the 
legal right to double its installation and to operate the same, it asks 
here only that the treaty limits be observed, and that thereby it may 
be enabled to operate economically its installation which had been 
installed and put in operation before the question of scenic grandeur 
Avas ever thought of in Congress. This company originally installed 
with particular respect for scenic grandeur and protected the land- 
scape and scenic beauty of the Falls, although at great expense and 
loss of head. The undisputed facts presented here show that the 
extra amount of diversion up to the treaty limits will not affect scenic 
grandeur nor an}' public interest. 

SITUATION OF THE CANADIAN NIAGARA PC AVER CO. 

Before the Burton Act was thought of, this company had installed 
and had in ojjeration a plant upon the Canadian side taking its Avater 
from the pool beloAv the upper crest, so that it could not possibly have 
any effect upon navigation. It also constructed Avith regard to scenic 
beauty. It acquired its riparian rights solely from the Canadian 
GoA'ernment, and as consideration therefor agreed to reserve one-half 
of its developed power for use in Canada when required. This com- 
pany, as the other tAvo Canadian iiiA'estors, Avere intended to bo pro- 
tected by the treaty of 1909, so far as consistent with the public in- 
terests invoh'ed in the question of senic grandeur, and therefore that 
treaty made the total limit of diversion upon the Canadian side 
36,000 cubic feet per second, which was no more than sufficient to 
supply the demand of the three installations already made and pro- 
jected upon that side by those three companies. The limits of total 
28305—12 22 



334 PRESERVATION OF NIACARA FALLS. 

diversion upon both .sides liaving- been fixed by the treaty, the excuse 
for prohibition of importation to the American side ceased to exist; 
and therefore the treaty contained no such prohibition. This was a 
concession to. or rather proper adjustment with (ireat Britain in be- 
half of Canada to protect not only the public-interests of Canada but 
the interests of Canadian investors. It was an adjustment also ac- 
quiesced in by this country in makino- the treaty, because it was 
recoirnized to be for the public interest of this country, where indus- 
trial development had created a demand which would absorb all the 
power de\eloped upon this side and all the power that could be 
imported from Canada. This company, therefore, with the other 
Canadian companies, join with the distributinc; companies upon the 
American side, to denuuid that the <iuestion of imj^ortation be left as 
the treaty left it — without any j)rohi!iiti()n or restriction. 

Tii.K EgriTAnLF. Position of Both tuf. American and Canadian 

Power Companies. 

Certain facts have been demonstrated at this hearing: 

(1) That the total diversions allov.ed by the treaty can have no 
appreciable effect u[)on navigation or upon the inteority of the bound- 
ary line nor injure military defense — -that therefore there is no around 
for Federal interfei'ence. the i-iiiht to which is limited to pre\('ntino- 
an unreasonable inteiference with na\ii>"ati<)n : 

(2) That, althouirh the protection of scenic o:randeur is not within 
the proper scope of Federal legislation (for if it belongs to any 
sovereign power, in this case it belongs only to the State of New 
York), nevertheless the total diversions allowed l)y the treaty will not 
have any appreciable eli'ect U})on the scenic grandeur of the FalN. a.nd 
in any e\ent the extra 4.-t00 feet allowed by the treaty on the Ameri- 
can side can have no effect: and that, with artificial diversions so 
limited, the danger to scenic grandeur lies wholly in the effect of 
natural causes, like erosion, wdiich dangers, together with any Sj^ecii- 
lative injury by diversion, can be averted by artificial means: 

(r^) That the total diversion allowed on the Canadian side will 
surely and quickly be made and that over that matter Congress can 
have no control, and that any restriction or i:)rohibition ui)on impor- 
tation to this side is objectionable for the following reasons: 

{(() The entire diversion upon the Canadian side will surely be 
made within a short time, and a prohibition of importation will not 
help scenic grandeur or any other public interest: 

(b) The Ani' rican r.-rrket is ready and is now demanding all the 
power that can be imported beside all that can be developed on this 
side. The demand is increasing faster than the power can l)e fur- 
nished, even with free im[)ortation. AVith importation prohibited, 
industrial development stops upon this side and progi'ess upon the 
Canadian side. That one of the two cotnitries which first gets hold 
of the i)ower will keep it : 

{(') The cutting off of the supply which would exist otherwise 
than for prohibition or restriction tends to increase the price: 

{(/) The prohibition can not be sustained on the ground that it is 
a tariff regulation, for it is not a general ]n'ohil)ition. but a sixv ial 
and local one: 



PRESERVATION OF NIAGARA FALLS. 335 

(6') It is reiMioiinnt to tlie si)irit and terms of the treaty of 1009 by 
which each country a<2:ree(l with the other that eacli misfht have the 
privileii'e of a certain limited diversion, with the American market 
in mind, and Canadian investments were made on the stren<!i;tli of the 
right to import, and the limit of that right Avas impliedly fixed by the 
treaty. A prohibition by Congress is simply saying to the Canadians 
that we have given them the right to divert 3(),000 on their side, but 
we will attempt to control the amount of that diversion, temporarily 
at least, by a provision repugnant to the treaty and at the same time 
control the diversion upon this side as we see fit. 

(4) It has further been shown that as the diversion of the extra 
4.400 cubic feet per second allowed by the treaty on this side can not 
affect scenic grandeur or any public interest, the treaty amount should 
be observed; that, however, is too small an amount to make any 
new power plant feasible. The navigation, sanitary, and power proj- 
ect suggested by Mr. Bowen is not only illegal and impracticable, 
but is entirely useless as a sanitary measure, as stated by Dr. Mc- 
Laughlin, of the United States Health Bureau. More than that, it is 
not only chimerical but is proposed by a company that has obtained 
no real estate rights whatever and involves a $35,000,000 proposi- 
tion based upon $100,000 capital, which capital has been paid in just 
enough to make a few maps and pay promoters. The 4.400 feet in- 
crease must of necessity go to the present plants, and of right should 
go to them in such quantities as to allow normal economical opera- 
tion of their plants, as the same were installed l^efore diversions were 
attempted to be limited. 

(5) The vested legal rights of the Niagara Falls Power Co. (and I 
assume it is the same with the Hydraulic Co.) are urged here, not for. 
the purpose of getting specific legislation allotting the extra [)ower 
to them directly, but for the purpose that their rights and equities 
may not be ignored to the extent that the proposed act shall prevent 
those rights and equities being taken into consideration in the future 
by some official person or body to whom the authority of allotment of 
this power shall be delegated. It might be unwise for Congress to 
attemj)t to say that these companies should have the extra water, or 
in what proportions. It would be still more unwise to make any pro- 
visions so that these two comi)anies. or either of them, should be shut 
off from the extra power, or that one company should be preferred 
to the other. That should be left to the good judgment of the person 
or conuni^sion authorized to make the allotment. Avith the oppor- 
tunity for hearing to these companies and to any other interests that 
might appear, whether such authority be the Secretary of War or a 
Xew York commission or the State itself. Consequently, the amount 
limited to be permitted to any one company should not be less than 
10.000 cubic feet as a total. The jiresent limitation of S.dOO to any one 
company would mean that some of the extra 4.400 cubic feet could 
not be allotted to any conqoany ; for the present permits to these com- 
panies are. respectively. 8.()00 and (J.nOO. while their normal econom- 
ical capacities are. respectively, 10,000 and 9.500, and the 4.400 is 
not sufficient to warrant any new plant by any new company, and 
much less would a lesser quantity warrant such new construction. 

((■)) While it would be hypocritical for either the Niagara Co. or 
the Hydraulic Co. to claim that they would not really like to have the 
entire 4,400 feet, it would be unfair to either company to include any 



336 PRESEKVATIOX OF NIAGARA FALLS. 

provision in the act which would of necessity result in giving to the 
other company the entire 4.400 feet. Such would be the eti'ect of a 
provision giving it to the company which operates at the highest 
head, and therefore with the most efficiency, because that would ex-, 
elude the Niagara Co.. whose equities are particularly strong upon 
this point. The Niagara Co. constructed at a loss of some 50-foot 
head for the very purpose of preserving scenic beauty and set its 
works far up the river, using a long canal by which some head was 
necessaril}^ lost. This was done under the advice of the best engi- 
neers and landscape artists. The Niagara Co. would ask of the 4,400 
feet only 1,400 and would willing leave the other 3.000 to the Hy- 
draulic Co. It would be absurd and unjust that legislation, enacted 
to protect scenic grandeur, should penalize a company Avhich had 
shoAvn the most regard for that interest and in doing so had sacri- 
ficed in efficiency, by providing that its very sacrifice for that public 
interest should be made the ground of discriminating against it and 
in favor of another company whose works, in appearance and in 
location, had been installed comparativeh' with a disregard for 
scenic grandeur. 

The Question of Kates. 

It appeared conclusively that the ^tate of New York, through its 
public service commission has full power and authority to regidate 
rates to consumers, and that there is no need of any exercise of such 
power in this matter by Congress, even if it had authority. Such 
attempted exercise by Congress would be an interference with the 
right of New York. This applies both (1) to rates for power pro- 
duced on the American side and (2) rates for power imported from 
the Canadian side. 

AS IT) RATES FOR I'OAAER PROHUCED ON THE AMERICAN SmE. 

These rates, being for power produced and distributed on the 
American side and in the State of New York, are manifestly within 
the sole jurisdiction of that State. As a general rule the producing 
company sells in bulk to a distributing company, as, for instance, the 
Niagara Falls Power Co. delivering to the Cataract Power & C(mduit 
Co. at the city limits of Butfalo at a certain price at that point, which 
includes the transmission from the producing plant to the city limits. 
With the rate thus fixed at the city limits, the public can have no 
concern if the ultimate cost to the consumer charged by the dis- 
tributing company is a fair rate. The price at the city limits is $1G 
per horsepower per annum, and the cost of such transmission alone, 
including a fair return on the necessary transmission line and appa- 
ratus, is about $6.50 per horsepower (see statement of Mr. Barton). 
This makes the charge figured at the bus-bai-s of the producing com- 
pany about $9.50 per horsepower, which is approximately the same as 
that paid by the Canadian Hydro-Electric Commission to the Cana- 
dian producers. The prices paid by consumers in the city of Butfalo 
are shown by the following schedule of rates, which are published by 
the Cataract Power & Conduit Co., and which are uniformly ad- 
hered to: 



PRESERVATIOlSr OF NIAGARA FAT^KS. 337 

Tivo-charge rate. 



FIRST CHARGE FOR DEMAND. 



One (loJlni- per kilowatt per month for the maximum 2-minute 
kiloAvatt demand during the month. 

SECOND CHARGE FOR ENERGY. 

Per kilowatt 
hours. 

For 1.0(10 kilowatt hours or less per laoiitli $0.02 

Excess over l.(K10 kilowatt hours up to 2.000 kilowatt liours .015 

For 2,000 kilowatt hours .01.3 

Excess over 2.000 kilowatt hours up to 3,000 kilowatt hours .012 

I-or 3,000 kilowatt hours .012 

Excess over 3,000 kilowatt hours up to 5,000 kilowatt hours .01 

For 5,000 kilowatt hours -01 

Excess over 5.000 kilowatt hours up to 10,000 kilowatt hours .008 

For 10.000 kilowatt hours . 008 

Excess over 10.000 kilowatt hours up to 20,000 kilowatt hours .0075 

For 20,000 kilowatt hours .0075 

Excess over 20,000 kilowatt hours up to 40,000 kilowatt hours . 007 

For 40,000 kilowatt hours .007 

Excess over 40,000 kilowatt hours up to 80,000 kilowatt hours . 00G6 

For 80,0tK) kilowatt hours .0000 

Excess over 80,000 kilowatt hours .0064 

Example. — A 75 kilowatt (100 horsepower) motor running 10 
hours per day, taking 75 kilowatt (110 horsepower) at times as a 
maximum, but averaging throughout the day 56 kilowatt (75 horse- 
power) would in 25 davs per month consume current as follows: 
5()X 10X25=14,000 kilowatt hours. 

The charge for tliis at the above rates would be as follows: 

Deniaiul char.uce. 75 kilowatt, at $1 .$75.00 

Eueriiv. lO.O(X) kilowatt hours, at $0.008 80.00 

-1.0<M) idlowatt hours, at $0.0075 30.00 



Total uiouthly charge 185.00 

Demand rate. 

Applicable to 24 hours' use of power, and based on monthly maxi- 
mum demand. 

Per electric 
horsepower 
per annnin. 

WJieu the deuiand equals or exceeds 100 horsepower, at the rate of $36.00 

WluMi the demand equals or exceeds 200 horsepower, at the rate of 32. 50 

When the demand equals or exceeds 300 horsepower, at the rate of 30.00 

When the demand equals or exceeds 500 horsepower, at the rate of 27. 50 

Service is delivered to consumer's premises at 2,200 volts, 3 phase. 
25 cycles, alternating current. 

The above was procured and furnished mo by Mr. Barton in ac- 
cordance with the suggestion made by some of the committee, to be 
included in the record of this hearing. These rates are no higher 
than many of the rates to consumers in Canada charged by the dis- 
tributing companies there for power furnished by the Hydro-P^lectric 
Commission, whether furnished directly by that commission or 
through subsidiary distributing companies. The Toronto rates are 
even higher, and at Bridgeburg the price for quantities of 200 horse- 



338 PRESERVATION OF NIAGARA FALLS. 

power is $30 as a;s:ainst $32.50 in Buffalo (see Mr. Barton's state- 
ment). Under the strictest construction, the American companies. 
producei"s and distributors, are entitled to a fair return on their 
investment, including a fair profit. In Canada, theoretically, the 
IIvdro-Electric Commission supplies at cost. On this side it may 
be true in one sense of the word that there are two "profits"; but it 
is clearly shown that each company only gets a fair profit on its 
(•n[)ital investment and that the cost of such investment in Buft'alo 
for the distributing company is very great, being increased by the 
obligation to put conduits underground and other expensive recjuire- 
ments. If this expense were not incurred by the distributing com- 
inxny it would have to be by the producing company, and the two 
profits, so-called, are both only equal to the one profit which would 
be allowed if the producing company distributed and delivered to 
the consumer (see statement of ]\Ir. Barton and Judge Kenefick). 
As a nuitter of fact, no one is demanding a change of rates. It has 
been impossible to get 100 consumers of power furnished by the Cata- 
ract Power & Conduit Co. to enter a protest. The question of rates 
is manifestly a political one (see statement of Corporation Attorney 
Hammond). In any event, all the machinery and power for investi- 
gating and regulating rates, as well as the projjer jurisdiction thereof, 
rests with the State of Xew York and its public-service commission. 
On the American side the State already has its return in State taxes 
as well as free electricity for light and power and also for use of the 
State in the State Reservation at Niagara and the public buildings 
thereon (see chap. 513, Xew York Laws, 180'2), and to the city of 
Buffalo and other cities in taxes upon liberal assessments, not only 
upon the property of the power company but also upon the property 
of industries attracted by cheaj) power. 

The standard 10-hour meter power at a rate which affords a u):ix- 
imum use of 100 horsepower and an average use of 75 horse|)()\ver 
for a month of 250 hours amounts at the city of Niagara Falls to 
$144.17, as against over eight times that price in Boston, six times 
that rate in Philadelphia, over four times that rate at Chicago and 
New York, and nearly four times that rate at Cleveland. At Buffalo 
the rate for the same amount of power is $185, the extra price over 
Niagara Falls being on account of the extra cost of transmission to 
Buffalo, but the Buffalo rates are only a small percentage of rates in 
other cities not located so as to avail themselves of the Niagara power. 
The industrial growth of the cities using Niagara power from 1000 
to 1005 is showh by the following figures, showing values of manu- 
factured output : 

Buffalo, from $126,156,830 to $172,115,101: Xiaoara Falls, from 
$8,540,184 to $16,015,786: Lockport. from $5.;]52.660 to $5,807,008: 
Rochester, frcmi $50,668,050 to $82,747,370: Svracuse. from $26,546,207 
to $34,823,751. 

In 1000 these figures for Niagara Falls had increased to $28,652,000 
or about 80 per cent. Similar increases are shoAvn in the other cities. 
Most of this increase was i)rior to 1007. since which time the restric- 
tions on importation and the limitations upon this side, fixed by the 
Burton Act, have kept industrial development in these cities com- 
paratively at a standstill. 



PRESERVATION OF NIAGARA FALLS. 339 

HATKS FOR POWER PRODTCEO OX THE CANADIAX SIDE. 

As iilready shown, the Canadian Hydro-Electric Commission take 
the ])owei' distributed upon the Canadian side at the bus-bars of the 
producing" phuit and pay all the expense of construction, maintenance, 
and operation of transmission facilities. More than that, the Cana- 
dian ])lants are located upon the ])roperty belonging: to the Province 
of Ontario and hold under leases, instead of being independent pro- 
prietors, as are the American power companies. xVs a consideration 
for tliis concession, the Canadian companies are supposed to deliver 
certain quantities to the Canadian conmiission at cost. However, it 
has been shown that, considering the transmission by the Niagara 
Comi)any on this side to the point where the charge is $lt) per horse- 
power per annum, delivered in large quantities under contract, the 
price delivered in bulk by the producing companies is practically the 
same on this side as upon the Canadian side. It has also been shown 
that the cost to the consumer upon the Canadian side argued in favor 
of American private management as an economy and an advantage to 
the consumer. 

As to the price to the consumer on this side of imported power, it 
goes without saying that the price delivered on this side in bulk could 
not possibly be the same as the price delivered in bulk at the bus-bars 
of the producing plant on the Canadian side, for the cost of transmis- 
sion across the river is expensive, and a fair return upon such cost 
and of installment and operation must be added (to fix the price of 
power delivered at the American side of the river) to the cost of 
delivering the same power on the Canadian side, and for power deliv- 
ered in bulk after further transmission to the city of Niagara Falls 
or the city of Butialo a further cost must be added. The figures 
already given show that the prices prevailing for delivery at the city 
limits of Buffalo or to the consumer in the city of Buffalo can not be 
less for power im]:)orted from Canada than that wdiich is charged for 
poAver produced on this side. 

The whole discussion and showing with regard to rates shows that 
the demand and need is not for lower prices l)ut for more power, and 
that this demand is for all the power that can be produced upon this 
side and for all the ])ower that can be imported from the other side, 
free from prohibition or restriction, up to the full amounts provided 
in the treaty of 1909. 

ScENir Beauty Plus Industrial Graxdei r. 

Sentimentalists who. without investigation and with misconception 
of the facts. Iilindly worship an exjjloded theory and echo a mere hue 
and cry, as do our friends the president and secretary of the civic asso- 
ciati(»n. phrase and quote ])hrases eloquently framed upon the gran- 
deur of the world-renowned Niagara. The tlieoiy upon which their 
cam])aign was based prior to the Burton Act of 190(5 — that the scenic 
grandeur of the falls was in danger by reason of diversions for 
power — has been exploded bv three years of investigations and re- 
ports by the United States survey, upon the basis of which jjrovisions 
of the treaty of 1909 were made. Those expert conclusicms have been 
confirmed bj' two years of further careful investigation and experi- 
ence. Thay conform with tlte experience and observatitm of every 



340 PKESEKVATIOX OF JS'IAGAHA FALLS. 

observer of the falls — that no appreciable change has been caused to 
the sc-onic crandeiir bv power diversions. Nevertheless, by an appeal 
to prejudice these agitators have brought forth denunciations from 
the press and have falsely created the impression that the two Ameri- 
can companies have made and are now making an ''attack'' upon 
Niagara: that because they are seeking to have the treat}' provisions 
observed and confirmed by a new act which shall replace the mere 
conjectural provisions of the temporary measure, known as the Bur- 
ton Act of 190(). with an act that shall recognize the limitations con- 
siderably, conservatively, and expressly fixed by the treaty, they are 
asking authority for unlimited diversions with a view to further 
installation. The cry has been put forth that Niagara is again in 
danger, although that question has been scientifically passed upon 
and the jjrovisions necessary to avoid such dangers were fixed and 
established by the treaty, which it is now' sought to have enforced. 
They ignore the fact that the Niagara Falls Power Co. have not made 
any additional installations since long before the Burton Act was 
passed and that its installation is for only one-half the capacity to 
which it has a right imder the law and that it only asks here for a 
small fraction of the increase fixed by the treaty in order, properly and 
economically to operate its installation. They fail to recognize that 
that company, from the veiy start, has studiously and consistently 
and continuously shown its regard for the scenic grandeur of the 
falls, even at ex])ense and loss to itself, voluntarily incurred before 
others had raised the question of scenic grandeur. No one has more 
a])preciation or regard for the beauties of Niagara and for their pres- 
ervation than the officers and stockholders of this company. Its con- 
test here is not antagonistic to the cause of scenic beauty but for 
another grandeur, the utilization by man and for the benefit of man 
and connnunities of the energy wdiich is daily going to waste over the 
falls; not all that energy, but oidy such use thereof as is, in fact, and 
as has been found by scientific investigation to be entirely consistent 
Avith the preservation of scenic beauty and of every other i)ublic 
interest. The industrial grandeur which they stand for is not incon- 
sistent with the cause of scenic Ix^auty, but it is one which appeals to 
the highest sense of beauty, poAver. and achievement. 

Mr.^T G. Wells, in Ilai-pers' AVeekly of July 21, 1906. said: 
" The dynamos and turbines of the Niagara Falls Power Co., for 
example, impressed me far more profoundly than the Cave of the 
Winds: are. indeed, to my mind, greater and more beautiful than that 
accidental eddying of air beside a downjiour. They are well made 
Aisible. thought translated into easy and connnanding things. They 
are clean, noiseless, and starkly ])OAverful. All the clatter and tumult 
of the eai'ly age of machinery is past and gone here : there is no smoke, 
no coal grit, no dirt at all. The Avlieel pit into which one descends 
has an almost cloistered quiet about its softly huunning turbines. 
These are altogether noble masses of machineiy. huge. Ijlack. slumber- 
ing monsters, great sleeping toi)s that engender irresistible forces in 
their sleej). They sprang, armed like Minei'va. from serene and specu- 
lative, foreseeing, and endeavoring brains. First was the word and 
then these ])Owers. A nuin goes to and fro (juietly in the long clean 
hall of the dynamos. There is no clangor, no racket. Yet the outer 
rim of the big generators is spinning at the pace of a hundred thou- 
sand miles an hour; tiie dazzling clean switchboard, wnth its little 



PRESERVATION OF NIAGARA FALLS, 341 

handles and levers, is the seat of empire over more power than the 
strength of a million disciplined, unquestioning men. All these great, 
things are as silent, as wonderfully made, as the heart in a living 
body, and stouter and stronger than that. * * * 

" When I thought that these two huge wheel pits of this company 
are themselves but a little intimation of what can be done in this 
way, what will be done in this waj^, my imagination towered above 
me. I fell into a day dream of the coming power of men and how 
that power may be used by tb.em. * * * 

" For surely the greatness of life is still to come; it is not in such 
accidents as mountains or the sea. I have seen the splendor of the 
mountains, sunrise and sunset among them^ and the waste immensity 
of sky and sea. I am not blind because I can see beyond these glories. 
To me no other thing is credible than that all the natural beauty in 
the world is only so much material for the imagination and the mind, 
so many hints and suggestions for art and creation. "Whatever is is, 
but the lure and symbol toward what can be willed and done. Man 
lives to make — in tlie end he must make, for there will be nothing left 
for him to do. 

" And the world he will make, after a thousand years or so. 

" I. at least, can forgive the loss of all the accidental, unmeaning 
beauty that is going for the sake of the beauty of the fine order and 
intention that will come. I believe — passionately, as a doubting lover 
believes in his mistress — in the future of mankind. And so to me it 
seems altogether well that all the froth and hurry of Niagara at last, 
all of it, dying into hungry canals of intake, should rise again in light 
and power, in ordered and equipped and proved and beautiful hu- 
manity, in cities and palaces and the emancipated souls and hearts 
of men. * * * " 

Prof. Walter Frewen Lord said in the Toronto Mail and Empire 
of December 4, 1906 : 

" I went over the Niagara power plant at the Falls the other day. 
It was a revelation to me. The cataract was wonderful, of course, 
but it struck me that the work of man in harnessing it was far more 
wonderful. It seemed to me the greatest thing tliat was ever at- 
tempted — the greatest thing on earth.'' 

Kev. J. N. Hallock. D. D., said recently in the (^hristian Worker 
and Evangelist : 

"A new Niagara, ' harnessed." but not hushed, with its beauty 
unmarred and its torrential fury undiminished, now greets tlie aston- 
ished eyes of pilgrims to this picturesque region. The hand of the 
engineer has left the mighty cataract untouched, while adding to the 
attractiveness of nature's greatest wonder. Niagara is ])ractically 
just it is was 10 or 20 years ago. impressive in its combination of 
picturesque beauty and awe-inspiring grandeur. The rapids and 
whirlpool still excite the admiring wonderment of men. But there is 
much more than the Falls and the scenic beauties of the river to 
interest and charm those who visit this new world Mecca. 

" I am not sure but that the popular apprehension regarding the 
l^ossible destruction of the Falls by the water companies has increased 
the tide of travel in this direction this summer. Thousands of per- 
sons no doubt actually believed they were gazing u|K)n the cataract 
for the last time. Natiu-al Niagara is still a spectacle of beauty and 
power; industrial Niagara is a wonderful demonstration of man's 



342 PRESEKVATIOX 01' NIAGARA FALLS. 

mastery over the forces of nature. The \vork> of the engineer ^vhich 
use the waters of Niagara River to drive the wheels of inchistry are 
even more spectacuhir than the cataract itself. " " * 

"After rushing tho turbine Avheels beneath these po^ver lioiises. 
developing a total of 110.000 horsepower, the water passes through 
a tminel a mile long under the city of Niagara Falls, and empties 
into the lower channel under the first steel bridge. Over 1.000 men 
were engaged continuously for more than three years in the construc- 
tion of this tunnel, which called for the removal of more than -500,000 
tons of rock and the use of more than 10.000.000 bricks for lining. 

"As these power houses represent the first attemi)ts to ' harness " 
Niagara upon a big scale and embody the hitest achievements of elec- 
trical engineering, thej'^ are visited yearly by thonsands. and form one 
of the attractions of the Niagara regions. 

" It is in no small measure due to the energy, courage, and pers^^"- 
\erance of the directors of the Niagara Falls Power Co. and their 
associate engineers that Niagara P'alls owes its present importance as 
an industrial center. 

" Upon October 4. 1890. ground was l)roken at Niagara Falls, N. Y.. 
for the initial power installation of the Niagara Falls Power Co. 
The trial development was for 15.000 horsepower. At that time three 
small towns, with a combined population of less than 10,000. were 
contained in the limits of what is now the city of Niagara Falls. 
The assessed valuation of all three towns was about $7,000,000. Five 
years later the first electrical power from the initial installation was 
delivered commercially to the Pittsburgh Reduction Co. for the manu- 
facture of alununum. To-day. Ki years after the breaking of ground 
for the tunnel, the aggregate amount of power developed by the 
Niagara Falls Power Co. and its allied interest, the Canadian Niagara 
Power Co., is about 100,000 horsepower, with additional capacity in 
course of construction amounting to GO.OOO horsepower. Niagara 
Falls is now a city of almost :>0,000 inhabitants, with an assessed 
valuation amounting to over $!iO,000.000. Such in brief arc some of 
the residts accomi:)lished by the men and engineers who harnessed 
Niagara Falls. Less than 4 per cent of the total Hoav of Avater over 
Niagara Falls has been diverted by these coinpanies and its beauty 
and grandeur are unimpaired."' 

The establishment of the great works of the Niagara Falls Power 
Co., the pioneer not only in the establishment of great hydraulic 
iuid electrical niiits- but the first projector of extensive power trans- 
mission in America. In-ought forth the following conmient in the New 
York Tribune by Mr. Royal Cortisson. an art critic of the first rank: 
" P)eing utterly ignorant of these things. I won't conunit the imper- 
tinence of pretending to ai)preciate the genius embodied in those 
colossal fabrics. All I can tell you is that they made me feel as 
though I was looking on while s(mie unthinkable Olymjiian went 
gloriously mad, in a kind of divine frenzy, and expressetl himself in 
terms raising the art of the Fgyptian temples to a higher power, 
giving to things of overwhelming l)ulk an immeasurable life and 
]Mirpose, and ^onlehow putting over them a glamour of the subtlest 
delicacv and charm. It was like a fairyland created for the pranks 
of the high gods. It was like a force of nature tamed and held by a 
silken thread. I won't say it was like the most wonderful thing ip 
the world. It is itself the most wonderful thing in the world." 



PRESERVATION OF NIAGARA FALLS. 343 

THE CAMPAIGN OF SCARE. 

It is a sio-iiificant fact that duriuo- hearings extending over two 
Aveeks. given the widest i)ubli('ity. there ai)peared liefore this com- 
mittee only two persons who had any other snggesticm to make than 
that the fnll limitations as to diversion and as to importation, alknved 
by the treaty of 1!)0!) shonld be the basis of the proposed act of Con- 
gress. The first of these was Mr. Spencer, who claimed to be a pho- 
tographer and engineer, and who explained the extent of the natural 
erosions of the Horseshoe Falls, and who i)retended to state that the 
change in the appearance of the crest of those falls, which had devel- 
oped in the past 20 years, was due to artificial diversions of water 
for power. The value of his evidence, or lack of value, was shown 
by the fact that he claimed that the baring of the crest upon the 
Canadian side of the Horseshoe Falls which enabled the Canadian 
park conmiissioners in 1902 to fill in 250 feet of that crest line for 
<he purpose of improving the scenic effect of that Falls by obliterat- 
ing certain thin streams which existed only at times of high water, 
Avas caused by artificial diversions for power when as a matter of 
fact the artificial diAcrsions had not begun at that time. 

The only other ])er.son who api)eared to advocate a retention of the 
provisions of the Burton Act or anything less than the limitations of 
the treaty of 1009 Avas the ciAdc association, through its president and 
its secretary. They made the same arguments as Avere made in 190-lr 
and 1905, before anj^ official iuATstigations or reports had been made. 
During the hearings before this committee these officers neglected to 
bring before this connnittee any evidence, cA'en by the Avay of state- 
ment, in supi)ort of their conten.tion or in opposition to the conten- 
tion of every other private and public interest AAdiich Avas there repre- 
sented, the ])roducers and consumers upon both sides of the rivei' — 
the State of Ncav York, the city of Buffalo, and the cities of Windsor. 
Ontario, and Detroit, Mich., and others — all urging an act confirming 
the terms and limitations of the treaty. The record made by these 
hearings was conclusively against the contention of these agitators 
:ind in favor of that made by all the representatives of both public 
and private interests who appeared before the committee. The record 
speaks for itself, but Avith this the civic association Avas not content. 
Tt set out deliberately to throw a scare into the members of this com- 
mittee as well as into other ^lembers of the Congress. At great ex- 
pense and Avith a great deal of labor, as one of the officers has since 
l)oasted, it Avas arranged that this committee and other ]\Iembers of 
Congress should be flooded Avith letters and telegrams in order to 
overcome the cool and deliberate judgment of the committee, Avhich 
it seemed, could reach only one conclusion from the evidence which 
I'ad been brought before it at the appointed place and time. The 
result Avas a deluge of comnnmications, by letters and telegrams, 
solicited and i)rocured for the purpose of creating an im])ression ui)on 
the members of this committee that the public were interested to 
prevent any extension of the present legislative limitations. There 
is in fact no such public interest or public demand for any restric- 
tions narroAver than those contained in the treaty of 1909. The public 
interests and demands may be evidenced by the fact that on the 
evening of January 20 last the author of the Burton bill had been 
for some days ariuounced to deliver a public lecture upon ctonserva- 



344 PEESERVATIOX OF NIAGAEA FALLS. 

tion. with particular reference to the preservation of Niagara Falls, 
in a large hall in Brooklyn, X. T., with a seating capacity of about 
3,000. Thore were by actual count just 47 people present,' including 
tlie^ stenograplier who was sent to make a verbatim report of his 
address. Through the same influences have resulted misrepresenta- 
tions in the public ])ress in regard to these hearings, against which 
some of those who appeared before you have been obliged to defeutl 
themselves. 

We may expect that such methods will be continued. But the 
public have a right to expect that, upon the record which is made at 
these hearings, this committee will act judicially, fearlessly, and inde- 
pendently and frame and recommend an act with provisions sutticient 
properly to carry out the provisions of the treaty and Avliich at the 
same time shall be sufficiently protective of all the pul)lic and private 
interests involved. 

The Chairmax. The hearing on the Niagara Falls power bills are 
now closed. 

Congressman Smith desires to present resolutions by the Board of 
Trade of Niagara Falls, which the reporter will incorporate in the 
minutes. 



P.OARI) OK TkADK of NIAGARA FALLS, N. Y., 

.J<tiniiti-)i 2J. 191?.. 
Hon. Chas. P>. Smith, Congressman, 

Washington, D. C. 
Sir: Incloseil resolutions adopted at a general meeting of the board of trade, 
liold Tn<>sday, .Tannary 2P>, 1012. 

Yonrs, re.si)Gctfnily. Ciiari.ks Wooiuvard. 

Secret II rji. 

Resolved, That the board of trade of the city of Niagara Falls, N. Y., in 
meoling assembled, hereby favors ai. amendment to the Unrton Act. wliicli 
will allow the diversion of an additional 4,400 cubic feet of water per second 
from the Niagara River for power purposes. 

Re-<!olvc<l, That if such additional diversion be allowed by Congress, the 
city of Niagara Falls make such arrangements to be represented before the 
officer or body having power to grant permits for diversion of such additional 
4.400 cubic feet of water, to protect the rigiits and interests of the city of 
Niagara Falls in respect thereto, and to obtain such determinations as shall be 
for the benefit of the whole city. 

Resolved. That a co])y of tliis resolution be sent to the Member of Congress 
from this district for presentation to the i)roper committee in Congre.ss hav- 
ing the matter under consideration. 

CiiARLrs Woodward. 

Secret fin/. 



Statk ok Nkw York. Piblic Skrvick Commission. Second District. 

Albany, March 15. 7.0 7/. 
Mr. Frank C. Perkins. Consulting Engineer. 

Erie County li'inh liuUdinq. liuffalo, 'N . Y. 
Dear Sir: Below please tind data asked for per your postal card of .Tanii- 
ary 21. 1911 : 

Cnlaraet Poirer d- Conduit Co. — Power generated, none. Power purchased. 
219,105,10(5 k. w. h. Gross price k. w. h. purchased. .$759,829.90. K. w. h. de- 
livered to private consumers. 70.380. . 5.')4 : also 113.177.447 k. w. h. sold to rail- 
road and other corporations for which a gross ]n'ice of .$094,083.38 is received. 
Revenue from k. w. h. delivered to private consumers. .$028,110.00. Maximum 
load kilowa.tts. 40,170: date -when carried. December 0. 1010. Dividends. 
$150,000; four dividends during year, one of 3 per cent, three of IJ per cent 



PKESEKVATION OF NIAGAKA FALLS. 345 

ou $2,000,000 par value of stock. Number of meters coimected, fJli:. Number 
municipal are lamps, 347; incaiulesceut lamps used for muuicii)al ii.ulitint: pui-- 
poses, k. \v. h., 1,845. Revenue, municipal, $179.23. :Municipal heat and power, 
k. \v. li.. 1'.>.247,r)ij(). I!!.n-onue fi'om numicipal heat and i)o\ver, $S3,.")21. sr». 

Buff ah) General Electric Co. — Power generated, none. Power purchaseil, 
3!»,0r)3J4(» k. w. h. I'ower purchased from the Cataract Power & Conduii Co., 
38,521,720; and Niagara, Lockport & Ontario Power Co., 1,131,420. Gross price 
k. w. h. purchased, $312,430.97. K. w. h.' delivered to private consumers, 
18,377,047. Two hundred and thirty-three thousand one hundred and forty- 
four k. w. h. sold for commercial flat rate lighting which is not included in 
this item, the net revenue from which is $13,849.53. Revenue from k. w. h. to 
private consumers, $848,509.12. Maximum load kilowatts. 9.430. Date when 
carried, November 3(t, 19J0. Dividends. !t>222,440. Four dividends during year 
of 1^ per cent on $3.724,0<X) par value of stock. Number of meters connected, 
9,258. Number nnn<icii)a] arc lamjis, 3.(580; also 440 incandescent lamps used for 
municipal lighting purposes. K. w. h. municipal purposes, 5.5S(»,497 ; includes 
69.928 k. w. h. incandescent street lighting, 109,702 munici])al building lighting, 
47,758 municipal heat and power. Revenue municipal, $214,517.41. Municipal 
heat and power k. w. h., 47,758. Revenue from municipal heat and power, 
$2,724.24. 

Niagara Falls Power Co. — Power generated, 484,599,431. Power purchased, 
99,928,778 k. w. h. Gross price k. w. h. purchased, $229,830.18. K. w. h. de- 
livered to private consumers, none; 551,748,383 k. w. h. sold commercial, rail- 
road, and other corjiorations for which a gross price of $1,480,935.40 is received. 
Revenue from k. w. h. delivered to private consumers, none. Maximum load 
kilowatts, 62.200; date when carried. December 5, 1910. Dividends, $335,000; 
four dividends during year at 2 per cent ou $4,197,500 par value of sJtock. 
Number of meters connected, not given. Number of municipal arc lamps, 
none. K. w. h. municipal purposes, none. Revenue municipal, none. Munici- 
pal heat and power, k. w. h., none. Revenue from municipal heat and ix)wer, 
none. 

Yours, very truly, J. S. Kennedy, Sccrcturu- 



State of New York, 
Public Service Commission, Second District, 

Alhany, March 19, 1910. 
Mr. Frank C. Perkins, Consulting Engineer, 

Erie County Bank Building, Buffalo, N. Y. 

DisAR Sir: Answering your inquiry of the 14th instant, the report of the 
Buffalo General Electric Co. for the year 1909 shows as follows: Purchased from 
the Cataract Power & Conduit Co., 31,698,320 k. w. h., at a gross price of 
$259,337.25; purchased from Niagara. Lockiwrt & Ontario Power Co., 732,780 
k. w. h., at a gross price of $13,864.09. Total number of k. w. h. delivered to 
consumers during the year, 21,374,324 ; revenue therefrom, $964,799.54 ; miscel- 
laneous revenues, $2,655.99. Maximum load, 8,300 kilowatts, December 23. 
Dividends during the year, four dividends, each of 1* per cent on $3,724,000 par 
value of stock. Increase in surplus during the year $27,573.49. Number of 
meters in Buffalo, 7,341; Lackawanna, 199; Blasdell, 11. Connected load, kilo- 
watts: Buffalo, 22,622; Lackawanna, 257; Blasdell, 91. 

Cataract Power & Conduit Co. — K. w. h. pu>'chased from Canadian Power Co., 
Niagara Falls Power Co., and Toronto Power Co., 181,531.061, for a total gross 
lirice of $724,649.06. Total number of kilowatts sold, 177,296.138, for a revenue 
of $1,210,880.33; miscellaneous revenue, $1,049.76; total revenues. $1,211,930.09. 
Maximum peak load not shown. Total dividends during the year, two dividends 
of 3 per cent on $2,000,000 stock. Increase in surplus during the year, $40,994.22. 
Number of meters, 5.30 ; connected load. 80,000 e. h. p. Number of consumers, 454. 

Niagara Falls Power Co. — K. w. h. generated, 417,256.803; purchased, 77,705,- 
292. Sold, 458.481,883, for a revenue of $1,290,912.66. and miscellaneous reve- 
nues of $74,179.95, making total revenues for the year. $1,365,092.61. Maximum 
load. 60,0<X) kilowatts, December 10. No dividends. Decrease in surplus during 
the year. $239,646.69. Number of meters, 112; connectetl load, 70,870 kilowatts. 
Number of consumers, 29. 

Regarding your inquiry. " Total kilowatts capacity, generated or i)roduced.'" I 
am unable to interpret this inquiry. 

Very respectfully, W. J. Meyers. 

Statistician. 



346 PKESERVATIOX OF NIAGARA FALLS. 

AK(;r.Mi:.\T ok the iiox. fuancis lyndk srirrsox RioFoiti': the 

SECRETARY OF WAR. 

Mr. SiiCKKTARY : By your iuvitation. the representiitives of the Niiijiara Fulls 
I'owor Co. and the ( aiiadi.'ii Niatrara Co. now appear before yon ni)on their 
;!l»piifati<>u tor your jKninit to ti-ansuiit from Canada and to receive in the 
T'nited States electric power .generated in I'anada from the works of the 
Canadian Niagara Co., to an amonnt not less than that indicated in the rei)Ort 
of your engineer, Capt. C. W. Kntz. enlarged in accordance with the views 
of the American nienil>ers of the Internalional \Yaterways Conunission. 

T'nder the act of June 29. I'.MMj. adopted upon the report of the House Com- 
mittee on Rivers and Harbors, jiresented by i s chairman, Judg*- Rurtou. after 
protract(Ml In^arings and jiersonal inspe--tiou. yon were authorized to grant per- 
mits in the aggregate for the transmission of ;!."(). (KK) electric horseiiower from 
Canada, of tins :in>ouut the transmission of i;X>.<KM> eb'ctric horsci»ower is 
to be permitted after practical exjterieuce shall have demonstratt'd the effect 
uiK)ii Niagara Falls of transmitting 1()0,(MM) electric ht)rsepower from the 
Canadian side. Y'our engineer, Capt. Kwx. and the thre*^ couunissioners, who 
at the hearing before you on July 12. ll>0(i, were .justly termed by Mr. McFar- 
land.' "the very able governmental conunission which has lookeil into the 
physical details of this question."" have investigated the conditions and have 
submit. ed you their reports that your discretion may be exercised to the extent 
of now permitting transmissicm of 3 »>(>.()< 10 ele -trie horsepower, with i-onditional 
enlargement as staled by the American conuuissioners. 

Their calm, lucid, and imi)artia! report upon this point has sMrreil to opjjo- 
sition Mr. .T. Horace McFarland. president and spokesman of the American Civic 
Federation, some of whose extraordinary statements may well be considered 
at the outset, for if well founded tb.e alle.ga'ions of Mr. McFarl.ind would pre- 
clude any transndssion at all. 

At the hearing in .Tuly, ^Ir. McFarlaud referred to himself as a '" white black- 
berry," and as the "lone represeutatise (if the peoiile." Since then and since 
the rei)orts of your advisory officers b.e has '"gone to the couniry" with printed 
broadsides for the u(>wspapers, intended to induce letters and telegrams to 
you to overrule y(mr advisers, anil making allegations so violent and so inac- 
curate, that, as I suggested in July the source from which they emanate can 
not be regarded as strictly resiM»usible; that i.s, as feeling bound to substantiate 
them. This charge is material and proper for present consideration, for. If 
well fonndtMl, it nuisl relieve you from the necessity of giving serious attention 
to his heated appeal, or to "the flood of personal letters" thereby invited. Of 
course, the iturden is niurn me to supi>ort this charge of irrespon.sible and inac- 
curate assertion: for at the .July he.iring, referring lo Mr. McFarlaud's extreme 
statenuMits. 1 said that if the effect uiion Niagara were to be as serious a.s he 
an;icipates. I should be with him entirely. 

Therefore, it is due to the gravity of the interests involved that I should 
indicate some of the important errors of ^Ir. McFarland <1oing grave injustice 
to men not less honest than he. 

so Mi; MlSSTATK.\li:.N IS l!V MI',. M "l- .\ i:i..\ N D. 

1. Mr. McFarland states that the Canadians already havt> cut off .")(Mi feet of 
the Horeshoe Falls "to acconunodate a jiower ci>nipauy." and ;igaiu "to give 
a better chance to one of the power com|>anies." 

This statement is .absolutely untrue, and upon .July 12. I'.Xm;. .Mr. McFarland 
was informed of th.-it whieh is the triuh, namely, that whatever was done in 
this particular was done by the order of the commissioners of the Queen Vic- 
toria Niagara Falls Park not for the i)urposes of any jiower company but for 

» In his excess of zeal in a cause wliicli in its intention is highly meritorious. Mi-. 
McKiirlaiMl lias marte attacl<s ui)on our companies so unfounded as to compel me to dissect 
:m<l to refute tliem. Tliis necessaril.v jiives to my remarlcs more of a personal turn than 
1 desire, for 1 understand that Mr. Mpi''arland has l)een and is a u.seful pulilic citizen. 
I have nothing' to say in derosation of his character or his motives, though in this dis- 
cussion, like the cowboy in the Western mining camp, he does seem to be " uncommon 
free with his gun." 

'-'These are the same gentlemen to whom in his third emergency call, dated November 
r.», Mr. McFarland refers, as •• the corporation-favoring International Waterways Tom- 
niission." No one now or hereafter, not even upon careful investigation of this question, 
can venture to differ from Mr. McFarlands decisions, without attracting his virulent 
comment. 



PRESERVATION OF NIAGARA FALLS. 347 

I lie iiiiproveuieiit of the Qiuvii N'ictoiiii P;irk in (h(> ex<M'cisc of the <'xclusive 
Jurisdiction of ilie eounnissioners. 

Tins is stilted by tlu' <'oinniissi')n(M-s .is follows in llieir S"V('nt(';'ntli .iiinuiil 
report for the year lOdli. l)eCo!e .•my Ciinndi.-ni power coinpaiiies were in 
operation : 

•'.\t T!d)le Hock tlie recessi(jn of tlu* Falls lias of late years barinl a lirjje area 
of tlH^ river bed. and .-idvantaire has been taken of the snrpins niateilal from the 
works in progress to reclaim all this area and provide a new and most attractive 
I'oint from which to view the Falls an<l gorge "' (p. 4.")). 
^^•<^ again (at ]>. S) : 

•• Tl'.e tilling in of the slion> line above the Falls bv excavated m.-iterial from 
the tunnels will increase the park area very considerably and will permit the 
roads and walks being constructed on the margin of the river, which will greatly 
improve the views of the upper rapids and at the same time cover the foreshore, 
which in some places has become exposed by the recession of the waters owing 
to the breaking away of the cataract." 

The arrangement here referred to by the commissioners was emiiodied in a 
plan delivered by the commissi(niei-s to the contractor, Mr. A. C. Douglass (now 
niay<n--elect of Niagara Falls), who complied with such plans because of the 
instructions of the commissioners and not for any purpose or advantage of any 
power company. 

On July 12. lf>Ci<!, when the Secretary was at Niagara, the facts as last given 
were stated to Mr. McFarland by ViV. Douglass in the presence of .Mr. P. P. 
Harton. general manager of the Niagara Falls Power Co. It was pointed out 
riiat the iilling did not in any way benefit any power company and was not 
desired by any power company, and that the snialT breams cut otT were insig- 
nificant from the scenic standpoint. 

As reported from the Canadian commission, the facts are as follows: After 
the fall of Table Kock and the conseQuent erosion of the cnmcavity of the Horse- 
shoe Falls the current sought and deepened the central channel, exposing the 
higher margin of the Canadian shore. To reclaim this exposed margin was the 
continuous purpose of the Canadian commissioners from their appointment in 
ISST. jirior to any ] lower d(>velopment. In pursuance of this purpose they have 
caused to be reclaimed an area which, measured along the crest line of the 
IToi-seshoe Falls, extends 400 feet, but at right angles to the original shore line 
only 175 feet, and this reclamation they deem to be for the public benefit. Of 
the 4<iO fe*>t reclaimed loO feet had been reclaimed prior to 1S05. 

If. as usual. Mr. McFarland doulited the truth of any statement favorable to 
the power companies, it would have been easy for him to ascertain the facts 
fi'om the Canadian commissioners. But he has chosen to make a derogatory 
and untrue assertion, notwithstanding forewarning of its falsity, and thus has 
invited the renewal of the charge of irresponsibility, which now I nnist repeat. 

Since the foregoing was written the Canadian Niagara Power Co. has received 
from the Queen Victoria Niagara Falls Park commissioners the following letter, 
finally and utterly destroying the basis of Mr. McFarland's twice-repeated 
liitelous charge : 

(Ki !'^' Vrtoui.v Niagara F.vlls Park Commissioneks, 

Toronto, Xorriiibcr .>0. IHOii. 
Ca.xaui w N'tagara Powicb Co.. 

Xidffara Falls. Ontario. 
Dkau SiKS: Referring to the following statement contained in the pamphlet 
entith'<l ••Imminent Danger to Niagara Falls," viz, •"they have already cut off 
.'.(10 feet <»f it " [Horseshoe Falls[ •' to accommodate a power company ! " I have 
only to state that the instruction to your company to deposit the waste material 
from tunnels, and so forth, on the margin of the river was for the purpose of 
improving the scenic conditions of the river shore. Owing to the ccmtinued 
falling away of enormous masses of rock at what might be called the apex of the 
Horseshoe Falls, drawing the water from the shore line into the center of the 
iiv<'r. the river on the Canadian shore had become dry. exposing large areas of 
unsightly bowlders ami ragged rocks. 

The commissioners, therefore, thought it well to take advantage of the 
work of excavation whi<'h was then in progress, in order to reme^ly these un- 
sightly conditions brought about by the water receding from the shore line. 

So far from the commissioners being under the dictation of your comiiany 
or of any otliei- power company in this i>articular. they actwl acc<irding to their 
best .iudgnient. and they beli^'ve tln-y have succeede<l in enhancing the a>sthetic 



348 PBESERVATION OF NIAGARA FALLS. 

conditions of the Tlorscsluie Falls. :is wt'U as of the shore lino ;iiii>ro:u-Iies 
tliorcto. 

Belii-ve uie. yours, truly, J. W. I>anc:.\iuii?. ('hnlnntiii. 

2. As to the siiuouut of water likely to be witlulr:i\vn. .Mr. McF:irlan«l makes 
the following extraordiuaiy misstatements:' 

(u) "A recent examination of the tailraces and channels intended to turn 
the water into the Niagara River after it has been used in the great turbine 
wheels of the existing Canadian plants, shows that their aggregate section is 
68 by 72 feet. The velocity of water now beginning to rush through these vast 
channels is at least live times that of a rapidly flowing river. Is it likely the 
volume of water which will pass at Niagara siieed through a channel as wide 
as a city boulevard and as <leep as a six-story office buildiug will not make any 
ditTerence in the volume of the Falls?" 

The aggregate section of GS by 72 feet given by Mr. :McFarland would be a 
prism of 4,S!M; sfiuare feet, which is about three times the .-iggregate of the 
actual cross sections of the tailraces of the three Canadian developments, 
whose measurements are as follows: 

Square feet. 

C. N. P. Co. tunnel, cross section 40r> 

Electrical Development Co. ci-oss section, approximately 514 

Ontario I'ower Co. tailrace, approximately 720 

Total 1. 030 

(h) Mr. McFarland further states: 

"Another comi>utation i*hov>'s that the water it is proposed to abstract on 
the Canadian side alone would make a rapidly flowing river 1,085 feet wide 
and 18 feet deep" — 

and in another place — 

" a rapidly running river nearly half a mile wide and IS feet deei)." 

The engineers of the Niagara Falls Power Co. advise me that this state- 
ment is even more wide of the truth than those already dissipated. 

The amount of water on both sides which under the temporary permits of 
the Secretary, and the report of Capt. Kutz, it is proposed now to abstract 
would be 20,kl0 feet per second.'' This volume of water, flowing out of a river 
IS feet deep and 1,085 feet wide, would make a "rapidly flowing river" only 
if this term, borrowed from Mr. McFarland, could be applied to a stream run- 
ning at the rate of less than half a mile an hour, which may be compare<l with 
the water in the Schoelkopf Canal that runs about 5 feet per second or approxi- 
mately 4 miles an hour. 

((•) Mr. McFarland endeavors to heighten the i^eril by stating that — 

" The volume of water thus withdrawn will more than equal the present aver- 
age outflow at the mouth of the Hudson, Delaware, and James Rivers com- 
bined." 

Hut these are tidal rivers, and the outflow at their mouths is iucoilstant, and 
is not susceptible of comparison with the current of Niagai'a, which at all 
times is a rapidly flowing stream. It is possible that because of the slowness 
of current, all of these three tidal rivers in their entire volume at their mouths 
would be inadecpiate to the regular production of o.lO.OOO horsepower; but we 
repeat, in the present ca.se, terms of horsepower are not suitable terms for 
comparison. As already observed, Mr. McFarland himself lias stated the aggre- 
gate section of the water which he charges is to be withdrawn, viz, a prism 
of <i8 by 72 feet, this being three times the prism actually couteniplate<l. But 
his imagined prism would be but an insignificant fraction of the prism of the 
mouth of any one of the three rivers n.-imed by him, much less of the three 
rivers in combination. 

(r/) Mr. McFarland scoffs at the contention that the withdrawal of the 
amount reported by your advisers will have no appreciable effect upon the 
.scenic grandeur of Niagara Falls, and cites — 

^ In a published interview the eminent physioiiin and citizen of Buff.alo, Dr. M. I>. Mann, 
refers to these statements as well as other statements of Mr. McFarland. deprecating 
an.v doubt of their truth. If. as now shown, the absolute error of these statements had 
been known to Dr. Mann and to the many oth(M-s who have been misled thereby, they could 
not have expressed themselves as they have done. 

- Present permits, American side, 8.600 + 4.000. Mr. McFarland's statement for 100.000 
horsepower. Canadian side, 13,500. 



PRESERVATION OF NIAGARA FALLS. 349 

" tlu' sdber (indiiii: of tho Aniericrni members of the Internatioiiiil Waterways 
t'diiiniissiiiii, rliat " the k'oI'.v of Niagara Falls lies in its volume of water rather 
than in its hei^'ht or in the suri-ounding scenery.'" 

B'.it. as stated by Mr. McFarlaud in his circular of November "», (his "is the 
very same body that has recommended to Secretary Taft to permit the admis- 
sion of 1(!0,<IOO electric liorsepower from the Canadian side."" Why should the 
capacity or the fairness of this body now be questioned? 

{(') Mr. McWtirland flouts the engineers who insist that no damage will be 
done to the Falls, and "those who bring the oldest inliabitaut of Niagara to 
testifj' that he can not see any difference." He pref(>rs to rely upon "recent 
visitors to the Falls." who " insist that there is already evident a substantial 
re<luction in their glory." 

The suggestions of Mr. McFarland as to a present ai)]iarent depletion of 
Niagara nnist have been refutetl by the i)ersonal observation of the Secretary 
upon the day of the hearing at Niagara, July 12, 1906, when the works upoTi 
the America!! side were in full operation. I am not the "oldest inhabitant": 
but after nearly 20 years of continuous observation of the volume and tlow at 
Niagara Falls, I am prepared to maintain, and I diallenge successful denial of 
the proposition, that upon that day there was no diminution of the volume or 
tlow of the Niagara. River which was susceptible of observation. Neither is 
tliere now any appreciable diminution.' 

This is in accordance also with the testinniny of the water gauges, which at 
least three times a day for more than 55 years have been maintained and 
exannned l»y the Niagara Falls I'ower Co. and by the Schoelkopf Co. These 
observations show not only that there has been no observable deiiletion of the 
American Falls, but that there has been no material diminution, even when 
tested by water gauges. The fact is that the draft upon the American side has 
resulted in the reestablishment of the regimen of the river by contribution from 
the Canadian side, where the water is deeper. (See Bogart, post.) 

It has been suggested by some, though doubted by others, that the additional 
waterways furnished b.v the tunnels tend to increase the rapidity of the flow m 
the river itself and thus to draw more rapidly upon the ample reservoirs of 
Lake Erie. In its effect upon this reserve the largest proposed diversion would 
be insignificant. (See Proceedings before the River and Harbor Connnittee. 
Prof. Williams, p. 237; contra, (ien. Ernst, p. 237; Brackenridge. \). 204.) 

1 This accords with the view of Mr. C. M. I). Burton, whosp highly intelligent and 
able plea for Niagara's preservation in Leslie's Weekly for November 8, though not 
wholly free from error, is commendable for its purpose to treat the subject fairly. Mr. 
Burt()n. in substance, concedes that " the I'^alls have not suffered perceptibly as yet," 
and states that " measurements show that the present diversions have lowered" the 
water at the brink a few inches." though he thinks that possible future diversions to the 
full extent authorized. " may well be subject for apprehension." See, also, the state- 
ment below of the Rev. Dr. Ilallock. 

This was the testimony also of Chairman Dow, of the New York Niagara Reserva- 
tion, before the Committee on Rivers and Harbors (Report of hearings, p. 170) : 

•• Mr. L.vwitE.NCK. Did I not understand you to say that you could not observe any 
diminution? 

■' Mr. Dow. I can not define it by the eye. 

"Mr. I..\wi£E\CE. How could you" detect it? 

•• Mr. Dow. This report would show the dilTerence. 

"Mr. Lawrence. As a scenic spectacle, what has been the effect? 

" Mr. Dow. Very little. 

" Mr. Lawrence. So that if there has been any marring of the scenic effect, it has been, 
as Mr. McFarland says, due to the (>rection of structures? 

" Mr. Bede. Vou can not detect it by sound either, can you? 

"Mr. Dow. No. sir. It is the fear of the future development that l)rings us here — 
what may l)e done. AVe are looking after this tremendous diversion." 

From this it appears that after Kit. 000 horsepower has been taken from the American 
side, the scenic effect is not visible even to the chairman of the New York Niagara 
Reservation. This Impressive fact becomes especially important In the consideration of 
the probable effect upon the Horseshoe Falls, over which, as Mr. Dow testified, there 
is a flow which in volume is nine times greater than that of the American Falls. It 
has been and is generally recognized that the draft on the Canadian side Is so far 
below the division of the river at (ioat Island that the draft proposed on the Canadian 
side would not sensibly affect the American Falls. 

This was the basis of my oral argument, addressed to the Secretary of War on 
November 2(). that — 

" This leads me to the conclusion, and I hope you may be led to the conclusion 
from an observation of the conditions, that it is practically demonstrated that l.".1.000 
hor.sepower produces no appreciable diminution of the American Falls ; and inferentially, 
that .".">0,000 horsepower taken from the Canadian Falls, which is from six to ten times 
the capacity of the American Falls, and which draft, as stated by Prof. Clarke this 
morning, would not afl:ect the American Falls — I say that the Infei-ence which you are 
permitted to draw, and I believe you will draw, is that the withdrawal of ."550.000 
horsepower would not affect the Canadian Falls any more than the withdrawal of i:?l,000 
horsepower has affected the .American Falls, and which is not appreciable." 

28305—12 23 



350 PKESERVATIDX OF NIAGARA FALLS. 

:->. Mr. .Mcr'arlaiitl iiuiuiils liinisi'lf to iiuliiljie in the fnlhnviiiK iusinuiitioii, 
which is umvorlhy. aiul in its necessary implication is absolutely false. He 
says: 

'"It is reiunted that they are ready to deceive the authorities, for one of their 
engineers uii\vittin};Iy disclosed the fact last Julj" that preparations had been 
made to bring in 4(t.(Kt() horsepower and to expend it or wasie it throuirh a 
water rheostat, in order that (hey might claim and show by instrument that 
they are actually ti'ansniitting that cnornious amount of power."^ 

The reference here is to the ('anadian Xiairara Power Co., wlii<*h I represent. 
I appeal to the personal exiierii'iice of the Secivtary of War. or his engineer, 
Caiit. Kutz. and of the American members of th(> International Waterways 
Commission whether the conduct and bearing of the Canadian Niagara I'ower 
Co. and its otRoers have not been such as absolutely to refute the suggestion 
that it has been "ready to deceive the authorities." even though it were silly 
enf)Ugh to wish so to do. All of its works and records have been thrown open 
fully and cheerfully to all of the authorities. It would have been futile, as it 
would haM' been base, for the com|)any to make any false itretense that it was 
otherwise disposing of an amount of jjower that it was carrying only to waste 
in a water rheostat. Any such false jn-eteuse could not have survived insjiec- 
tion for five minutes. 

Howe\er. it is true, and it was i)erfectly legitimate, that upon the intrnduc- 
tion of (he Burton bill it was considered whether, in order to demonstrate the 
actual i)ro<lucing and carrying capacity of its Canadian woiks and conduit, as 
actually installed, and not to deceive, this comi)any should not carry to the 
American side, not 40.000 horsepower, but 10,(XK) liorsejiower additional to the 
Ifi.OfiO stated by me at the July hearing. 

When, Mr. Secretary, at the July hearing you asked me how much ])ower we 
were carrying to the American side. I answered 10.000 hor.<ei)ower. I <lid not 
say 32.000 horsei)ower or 40.00(i horsepower. That was the first time the (jues- 
tion was raised. The con<lilion was necessarily obvious to the authorities; and 
how could we attempt to deceixe the authoritiesV The i)ro.ject of transmitting 
02,000 horsepower was cousidereii. although because of delays in the completion 
of its new tiansmission line (now in operation) it was not then prepared 
usefully to employ the power. This being so. the actual capacity of the genera- 
tors and conduits as then installed could have been demonstrated practically 
only by carrying the jiower into a water rheostat, for no other disjiosifion 
would then have l»een ])racticable. There was no secrecy about this proceeding, 
and the prominent locatiim of the buildings would make any such jirejia nil ions 
a matter of common knowledge as well as the obvious intent. The facts were 
always accessible to every one. including Mr. ;McFarland. and there would havg 
been no ne<'essity for nnsstatement. either b.v the conijiany or by Mr. Mc Far- 
land, either as to figures or as to motives. But the idea nexer advanced bo- 
yftnd preparation. It is not strange that the distortion of such a perfectly 
proper proceofling should be introduced by the words. "It is reported that." 

4. Mr. McFarland states that :it the hearing at Nia.gara Falls on July 12 all of 
the Canadian power comi)anies " a.greed on one iioint, which was that the Ameri- 
can public- was very foolish in interfering with their benefi<-ent desires to 
l)rodu(.e power at its exixMise." 

I api)eal to the record, as well as to the memory of the Secretary, for the 
refutation of this statement, certainly so far as I am concerned. 

Upon that occasum I began my remarks by stating that I believt^l and .should 
give my reasons tor belit'. i> .:. tiiat the impairment of Niagara would not be so 
serious as anticipated by Mr. .McFarland; and. that if it were to be as scmIous 
as anticipated by him I should be with him entirely. (Record, p. 21.) 

And now I repeat as firmly and comprehensively as I can that I have nothing 
but respect for the sincere men and women who by api)eals, sometimes as 
incendiary and erroneous ;is those of Mr. McFarland and sometimes more 
temperate but not founded on investigation, have been stirred to anxiety lest 
the greatest natural wonder of northeastern America is to be destroyed or 
imiiaired. This .anxiety is praiseworthy, and, did I believe the peril were rwil. I 
should stand with those who feel and express this anxiety. If I believed that 
the pioneer companies I represent would have produced any such result. I 
would cheerfully fore.go every peiniy of possible profit rather than further the 
enterprise. But I do ni>t so believe, nor after tlieir exhaustive investigations 
did Judge Burton or his committee so believe, for otherwise they would not 
have reported the bill which invests you with your discretionary powers up 
to the limit fixetl bv the law under which we now are i)roceeiIing. 



PKESEEVATION OF NIAGARA FALLS. 351 

The question is uot, as suggested by Mr. McFarliiud, oue as lo the folly of the 
Anici'lciui i)eople, but is one of fact — " Will or will not tlie Falls of Niagara be 
affecteil appreciably by the diversion or the transmission of the walers to the 
extent recommended by the American members of the International Waterways 
Commission?" This is the question .which to the extent of 850,000 lun-sepower 
from the Canadian Falls Congress decided to leave open for determination by 
you, and it is the question upon which you have chosen to take capable and pro- 
fessional advice from your captain of engineers and the American connnis- 
sioners. It is the question also concerning which the advice of these conunis- 
sioners as to the aggregate quantities that may be withdrawn is Die l)a.sis of 
our api>earauce before you to-day. 

1( is an insult not only to the companies whose position he belies, but also 
to yourself, that Mr. McFarland should luive issued the misstatements of which 
he has been guilty. He has advised the American people that — 

" Kesolutions and petitions have little force, but a flood of persitnal letters 
will be effective. This flood should begin to drop in upon Secretary Taft at 
once and continue until November 15." ^ 

A ■• flood of personal letters," induced by such a cloud-compelling appeal, can 
have little weight with the Secretary, not even though the flood were to equal 
■' the comI)ined outflow at their mouths of the Susquehanna. I'otomac. Hudson, 
Delaware, and James Rivers." This is a case in w'hich apparently Mr. :McFar- 
land has proceeded upon the second line of the Lincolnian canon, that you 
" may fool all of the people some of the time." 

Disi'egarding the statutory regulation of the Niagara Falls Power Co., 
which at its own suggestion limited its rights to 200,000 hoi-sepower, Mr. 
McFarland states that the iiower-developing companies were jierfectly satisfied 
to have all the water they wanted for nothing from the State of New York — 
and this in the face also of the fact tliat. as has been decided by the courts, the 
power companies upon the American side, being the riparian owners, received 
from the State of New York no right in Niagara waters to which they were 
not justly entitled by virtue of their riparian rights. Neither the State of New 
York nor the United States were the owners of the running waters as against 
the ri[)arian owners (Niagara Falls r. Smith, TO App. Div.. 543; 175 N. Y., 469; 
see also Sweet r. Syracuse. 120 N. Y.. 31t>-335; Niagara County, etc., Co. v. 
College Heights Co., Ill App. Div., 770.) 

5. :Mr. McFarland states that— 

"Not content with getting free water from the United States" to produce 
profit-bearing power, the Niagara Falls power companies have introduced con- 
siderable water into their stock, it is said, which is free to those inside, but 
expensive to the public." 

This statement can refer to only two companies, the Schoelkopf company, 
which has a stock of only $500,000, of which no part has ever been sold to the 
public, and the Niagara Falls Power Co.. which has a capital stock of about 
$4.0<X>,000. which has never sold above SO cents on the dollar, and which in the 
sixteenth year of its issue sells for only 50 cents on the dollar, although in the 
opinion of the comjiany it represents an investment fully equal to the par 
.'I mount of the stock. 

Mr. ]McFarland refers to the greed of these companies. The extent of that 
greed may be indicated by the fact stated by me at the July hearing, that for 
15 years the Niagara Falls Power Co. has been contented to continue with a 
(asii investment of over $20,000,000, receiving only ordinary interest upon th^ 



1 In Ilis tliirrt emorfrency call, dated Nov. Irt, Mr. McFarland reproduces his metaphor. 
.V literal response will inundate the war otTic(> until it becomes a bureau of rivers and 
harlinrs I Up says : 

" This second postponement gives further opportunity to strengthen the Niagara 
flood of protest and appeal which is heing turned toward the one man in America who 
can halt the commercial assault ujion oiu- greatest scenic glor.v." 

-This is an eiror. No couii)an.v has yet got free water fi-oni the Fniled States. Fuder 
the law (see authorities above recited), as against the Niagara Falls Power Co. and the 
Schoelkopf company, riparian owners, neither the Fnited States nor the State of Ni-w 
York owned the water of the river. The State of New York did own the lands under 
watei-. which it sold to these ui)lan<l owners upon the same puiilic terms as lo any and 
all othiM' owners of uplands. The same critics who now assert that the State of New 
Y'ork, which without aid from the Fnited States has paid ottt millions to preserve the 
I'^alls. is without jurisdiction to license power companies, in the sani(> breath condemn 
the riparian companies foi- making no i)ayment ti> the State. One answer is that, unlike 
the Province of Ontario, the State of New York neither sold or leased any upland to 
these companii's whose canals and tunnels were entirely on their own riparian uplands 
outside of the State reservation. 



352 PRESERVATION OF NIAGARA FALLS. 

cash investment represented by its bonds, and witliout ;i dollar of dividend npon 
its very moderate stock, in which alone conld be found any opportunity for 
real profit. A corporation whose activities and enerjries ai-e directed to, and 
satisfied by. the return of ordinary interest, can not .justly be accused of screed. 

6. Mr. McFarland refers to a newspaper publication of a plan of merger 
of the four power conii)anies of Niagara Falls, so as to create a monopoly, and 
asks: •"Should the United Slates protect this potential monopoly?" 

'The suggestion of an intended monopoly is absolutely untrue in fact. Neither 
the Niagara Falls Power Co. nor its subsidiary, the Canadian Niagara Co.. has 
any iiresent intention of entering into a combination with any company. Against 
any monopoly, though intended, suliicient protection would be afforded b.v the 
provisions of each of their charters. 

7. Mr. McFarland indiscriminately assails all of the jtower comi)anies, irre- 
spective of the fact upon which I dwelt at the July hearing^that the two 
pioneer companies, the Niagara Falls Power Co. and the Schoelkopf company, 
were ai)s<)lutely inunune against any charge that their operations would or could 
appreciabl.v diminish the volume of Niagara Falls. 

This fact was the snb.ject of examination and final report by the committee 
of the New York Constitutional Convention of 1894; the report, upon page 11. 
stating — 

"Two of them" (that is. the Niagara Falls Power Co. and the Schoelkopf 
company) "have expended large sums of mone.v. and are now oi)erating their 
respective i)lants, and the amount of water which they take will not do any 
appreciable in.iury to the Falls." 

At the Jul.v hearing, in answer to my question as to his view of the effect of 
the diversion by the Niagara Falls Power Co., Gen. Ernst replied: 

" If you were the only persons concerned, you would probably never have 
heard all this agitation." 

Upon this im])ressive recognition of our innocence of the charge of in.inrious 
assault upon Niagara Falls. I am content to rest. 

The report of the engineer, 1010. states that there has been no in.iury what- 
ever to the American Falls; and that of the in.iury to the Canadian Falls only 
an unknown part is due to diversion, the larger part being due to natural 
causes, the erosicm of the crest. 

THE COMPARATIVi: COST OF NIAGARA POWER. 

The Niagara Falls I'ower Co.. this pioneer in the development and establish- 
ment of great electrical central power houses and lines of ti'ansmission. has 
conferred an inestimable benefit on maid^ind. and in an especial degree upon 
the Niagara frontier, to which it is now delivering more than KiO.OOO horse- 
power at prices which, tliough misrepresented and ridiculed by Mr. McFarland. 
are readily accepted by hundreds of users, and this without compulsion: for if 
the Niagara power were not nicnv to their advantage than steam power devel- 
oped from coal, they would use steam power. 

The Niagara Falls Power Co. has published its schedule for standard 10-hour 
merer ))ower at a rate which offers a maxinumi use of 100 horsejmwer and an 
average use of 75 horsepower for a month of 250 hours, at an aggregate ])rice 
of $144.17. This compares with the following reported charges in six important 
northern cities: 

Boston $937.50 

•Philadelphia .839.25 

New York 699. 37 

Chicago 629. 43 

Cleveland 559.50 

Rochester 419.62 

Niagara Falls 144- 17 

In the face of such figures, who can doubt the beneficent effect of the opera- 
tions of the Niagara Falls Power Co. furnishing power at not more than one- 
fourth of the cost in New York, Chicago, or Cleveland, and at less than one- 
fifth of the cost in either Boston or Philadelphia? 

Mr. McFarland's statement as to the cost of the public lighting in Buffalo, 
misleading as it is, has nothing to do with the case. Neither the Niagara I-^alls 
Power Co. nor its ally, the Cataract Power & Conduit Co., has any relation to 
or control over the public lighting in Buffalo. They merely sell and deliver 
electric current to the lighting company, the same as to any other customer over 



PRESEEVATION OF NTAGAEA FALLS. 358 

whom they have no more control than the pain?!' seller has over the iniajjina- 
tions which Mr. McFarlamI imliscrhniiiately impresses upon his voluminous 
printed outjint. 

In great numbers, our customers have come to Niagara Falls, which at the 
heginuiiig of oiu* work was a country village with comparatively few industries 
until now it has become a prosperous city, the ninth in the State, in the volume 
of industrial products ajiproaching .$2<).0tX).(K)O per annum.' and this without 
apjireciahlt' diminution in the ajsparent volume of Niagara River, and with a 
steady in(r«>ase in the number of visitors, not only to the Falls but to our 
power houses as well. The moderate admission fees charge<l to such visitors 
.-ire used for the benefit of employees. 

THE MAKVELOrS ACHIEVEMENT OF THE NIAGARA TAI.LS POWEU CO. 

In the year 1S!)!t our continuing achievement was well described by Theodore 
Ivoosevelt. then governor of New York, who com]»leted his insitection of our 
works by writing over his sub.scription in our Visitors' Book. "A marvel indeed." 

How great is the marvel and how sjjjendid the achievement has been elo- 
quently expounded by that inspired seer of both present and future. Mr. H. O. 
AVeils. in tlie following wonderful words, written without previous knowledge 
of or insi)ir.ition from our <-ompanies. and published in the Harpers Weekiv 
of .Tilly 21. 190(5: 

III. <;. Wolls on the Niagara I'alls Power Co.] 

" The dynamos and turbines of the Niagara Falls Power Co.. for example, 
impressed me far more profoundly than the Cave of the Winds; are. indeed, to 
my mind, greater and more lieautiful than that accidental eddying of air be- 
side a downpour. They are will made visible, thought translated into easy and 
coinmanding thing.s. They are clean, noiseless, and starkly powerful. All the 
clatter and tumult of the early age of machinery is past and gone here: there 
is no smoke, no coal grit, no dirt at all. The wheel pit into which one descends 
has an almost cloistereil quiet about its softly hunnning turbines. These are 
altogether noble masses of machinery, huge black slumbering monsters, great 
sleei)ing to]is that engender iri'esistible forces in their sleep. They sprang, 
armed like Minerva, from serene and s]ieculative. foreseeing, and endeavoring 
brains. First was the word and then these powers. A man goes to and- fro 
quietly in the long clean hall of the dynamos. There is no clangor, no racket. 
Yet the outer rim of the big generators is spinning at the pace of ii hundred 
thousand miles an hour: the dazzling clean switchboard, with its little handles 
and levers, is the seat of empii'e over more power than the streugtli of vt 
million disciplined, unquestioning men. All these great things are as silent, 
as wonderfully made, as the heart in a living bodv. and stouter and stronger 
than that. * * * 

" V.'hen I thought that these two huge wheel pits of this company are them- 
selves but a little intimation of what can l»e done in this way. what will be 
done in this way. my imagination towered above me. I fell into a daydi'eau'. 
of the coniing power of men. and how that power may be used by them. * * * 

■' For surely the greatn.ess of life is still to come: it is not in such accidents as 
mountains or the sea. I have seen the splendor of the mountains, sunrise 
and sunset among them, and the waste immensity of sky and sea. I am not 
blind, because I can see beyond these gloi'ies. To me no other thing is credible 
than that all the natural beauty in the world is only so mucli material for the 
imagin::ti(iu and the mind, so many hints and suggestions for art and creation. 
AVliat(>ver is. is but the lure and symbol toward what can be willed and done.. 
Man lives to make — in the end he must make, for there will l»e nothing l(>ft 
for him to do. 

"And the woi'ld he will make — after a thousiuid years oj- so. 

" L at least, can forgive the loss of all the accidental, unmeaning beauty 
that is going for the sake of the beauty of tine order and intention that will 
come. I believe — jiassionately. as a doul)ting lover believes in his mistress — iu 
the future of mankind. And so to me it seems altogether well that all the froth 

^ Bulletin ."i7 of tlie Census of Manufactures for 190.5. shows the following increases In 
fhp v.nlue of nianufnetured outjjut frotu 1900 to 190."> : 

Buffalo, from $126.156.8.39 to $172.11.5.101 : Niagara Falls, from $8,540,184 to |16,- 
01.5.7.<<6 : Lockpoit. from .«.5..''..52.669 to $.5.807.908 : Rochester, from $59,668.95'.) to 
.i;S2,747.:UO : Svracuse, from $26,546,297 to $34,823,751. 



354 PRESERVATION" OF XTAGARA FALLS. 

and hurry of Niagara at last, all of it. dying into hungi-y canals of intake, 
should rise again in light and power, hi ordered and equipped and proved and 
beautiful humanity, In cities and palaces and the emancipated souls and hearts 
of men * * *." 

Mr. AVells is not alone in his belief. 

Prof. "Walter Frewen Lord, of Durham College and of the University of 
Cambridge, has exi)res.sed himself as follows, as appears in the Toronto Mail 
and Empire, upon December 4, 1906 : 

" I went over the Niagara power plant at the Falls the other day. It was a 
revelation to me. The cataract was wonderful, of c<iurse, but it struck me 
that the work of man iu harnessing it was far more wonderful. It seemed to 
me the greatest thing that was ever attempted — the greatest thing on earth " 

THE TESTIMONY OF THE RKV. J. X. HALLOCK, D. D. 

In a recent issue of the Christian AYork and Evangelist. Dr. Ilallock says: 

"A new Niagara, 'harnessed' but not hushed, with its beauty unmarred and 
its torrential fury undiminished, now greets the astonished eyes of pilgrims to 
this picturesque region. The hand of the engineer has left the mighty cataract 
untouched, while adding to tlie attractiveness of nature's greatest wonder. 
Niagara is practically just as it was 10 or 20 years ago, impressive in its com- 
bination of picturesque beauty and awe-inspiring grandeur. The rapids and 
w-hirlpool still e.\cite the admiring wonderment of men. But there is much more 
than the Falls and the scenic beauties of the river to interest and charm those 
who visit this New Wcirld Mecca. 

" I am not sure but that the popular apprehension regarding the possible 
destruction of the Falls l)y the power companies has increased the tide of travel 
in this direction this summer. Thousiuids of persons no doultt actually be- 
lieved they were gazing upon the cataract for the last time. Natural Niagara 
is still a spectacle of beauty and power; industrial Niagara is a wonderful 
demonstration of man's mastery over the forces of nature. The works of tlie 
engineer which use the waters of Niagara River to drive the wheels of in- 
dustry are even more spectacular than the cataract itself. * * * 

"After rushing the turbine wheels beneath these power houses, developing a 
total of 110,000 h(irsepi)wer. the water passes through a tunnel a mile long 
under the city of Niagara Falls, and empties into the lower channel mider the 
first steel bridge. Over 1.000 men were engaged continuously for uKU'e than 
three yeai's iu the construction of this tunnel, which called for the removal of 
more than 300,000 tons of rock and the use of more than 10.000,000 lu-icks for 
lining. 

"As these power houses represent the first attempts to 'harness' Niagara 
upon a big scale and embody the latest achieven)ents of electrical engineering, 
they are visited yearly by thousands and form one of the attractions of the 
Niagar.a regions.^ 

•• It is in no small measure due to the energj', courage, and persever.-ince of 
the dir(>ctors of the Niagara Falls Power Co. and their associate engineers that 
Niagara Fa.lls owes its ])resent iniiiortance as an industrial center. 

" Fiion October 4. ISitK), ground was broken at Niagara Falls. N. Y.. for the 
initial power installation of the Niagara Falls I'ower Co. The trial develop- 
ment was for ir).(K10 horsepower. At that time, three small towns, with a com- 
bined population of less than 10,000. were contained within the limits of what 
is now the city of Niagara Falls. The assessed valuation of all three towns 
was about !f7,00(>.(tOO. Fi\e years later the first electrical power from the 
initial installation was delivered connnercially to the Pittsburgh Kediirtion 
Co. for the manufacture of aluminum. To-day. 10 ye;irs after the breaking 
of groiuid for the tmuiel, the aggregate amount of power develoi)ed by the 
Niagara Falls Power ("o. and its allied intt>rest. the C.anadian Niagara Power 
Co.. is about 100.(X)0 horsepower, with additional cai)acity in course of con- 
struction amotniting to 00.000 horsepower. Niagara Falls is now a city of 
almost HO.OOO inhabitants, with an assessed valuation amounting to over 



1 The visitors linvo nnmlKM-cd manv thous.nnds, .nnd have included the wise and the vre.it 
of the earth. William jNIeKinlev's last si.unatur.-. an hour before the fatal shot at ISuftalo. 
was inscribed in our visitors' l)ook. .Vs already observed. Theodore Hoosevelt wrote 
his name there in ISOO. Li Hunt: Chanj: and Lord Kelvin, foremost in their widely sep- 
arated splieres. have been followed by vast processions throujch these power houses and 
have left their tribute of admiration also upon our books. 



PRESERVATION OF NIAGARA FALI^. 355 

$20,000,000. Such in brief nre some of tlio results acoouiplished by tlie men 
!ind eiijjiueers who harnessed Niagara FalJs. Less than 4 per cent of the total 
flow of water over Niaijara Falls has been diverted l»y these coiui>auies, and 
its beauty and grandeur are uniiupaired." 

Till-: NIACAKA l-ALI.S I'OWKK CO. NOT A VANDAL. 

We readily accept the characteristically fine statement of President Koose- 
velt that Niagara Falls should be preserved " in all their beauty and majesty," 
and we rest confidently on the proposition already announced by us and 
elaborated at the July hearing that no use of Niagara waters ai.'complished or 
proposed by either or both of our two pioneer companies who have spent 
hundreds of thousands of dollars to secure the most appropriate architectural 
effects would diminish either the beauty or the majesty of Niagara. If there is 
to be any such injury, it will be because of the proceedings of later comers, 
whose plans originated and have developed subsequently to ours. For their 
actions, if injurious, our two power companies should not suffer. Those later 
comers inidonbtedly will be able to speak for themselves. They can not speak 
or act to the detriment of our prior riglits and the innocuous character of our 
separate and independent exercise of those prior riglits. They have filed briefs 
apparently in attempted diminution of our rights, although we had not in any 
way attacked them. We are forced now to an assertion not only of our rights 
but of our itriority of right even if necessary to the entire subordination and 
l)ossible exclusion of any beneficial enjoyment by them. 

Kecognition of the Niagara Falls Power Co. as the pioneer in elec-trical de- 
velopment has been made by many, but by no one more graciously or acceptably 
than by Cien. Greene, the representative of the Ontario company, in the fol- 
lowing language: 

" yir. Stetson claims that his company is the pioneer company in the develop- 
ment of Niagara power. We cheerfully concede this claim. By the brains and 
the courage of Mr. Stetson and his associates, at a time 10 years ago when the 
electrical science was far less developed than at present, and the hazard of the 
enterin-ises c-orrespoudingly greater, the utilization of so much of the iiower 
of Niagara as can be taken without in any way detracting from its sphere and 
glory as a scenic spectacle, was made possible; and I would like to add. if I 
may. that Mr. Stetson and his friends, as well as those associated with me in 
the Ontario Power Co., are the true friends of Niagara, and can be more safely 
trusted to preserve its beauty than the noisy advocates who occupied so much 
of your time yesterday with misleading statements." 

In the same interest, Mr. Cravath followed Gen. Greene, saying: 

" While ^Ir. Stetson has been a pioneer in the generation of power, we have 
been ihe pioneer in the long-dist;ince transmission of this power in the State of 
New York." 

Mr. Secretary, this question which is now before you, as I ai)i)reheud it, con- 
cerning the distribution of the amounts of power to be taken generally by the 
different comiianies upon the report of your engineer as to the aggregate amount 
of power to be taken b.v companies tvoux the Canadi.in side and transmitted to 
the United States, is different from the question of how much power can be 
taken in the aggregate from the Niagara Iviver on both sides. That is the ques- 
tion that I supposed was discussed and fully discussed before you last July at 
Niagara, when you had the great advantage of taking the evidence of your own 
senses as to what was occurring to the river as a whole. But unless I ujisappre- 
hend the scope and effect of the argtnnents this morning, and the scope and effect 
of the arguments and appeals that Mr. McFarland has addressed to the i)ublic. 
that question as to the effect upon the Niagara Itiver as a whole, which we 
supposetl was argued and settled, so far as argument was concerned, last Julj'. 
now h;is been brought up again, and thus we are cimipelled to turn our atten- 
tion again to that question, as to which I stated at the close of the argument 
last July we readily acquiesced in the statement and the wisdom of the state- 
ment of (he Secretary of War that those n)atters should be referred by him to 
his master — that is. to the American members of the International Waterways 
('omnussion — and to the Board of Engineers of the Army for report; and we 
have nor come here with any idea of contesting that report upon the main sub- 
ject. But we are forced to take your lime for a few minutes concerning that 
branch of the question, because of the voluminous, and I might say, in some 
resixH'ts. venomous, attacks that have been made upon our positions. 



356 PRESEKVATION OF NIAGAKA FALLS. 

Out of the voluuies of siieeeb that were uttered this morniug one stood out 
couspifuous for its knowledge of the facts, and I shall esteem it, always a 
privilege to have heard Prof. Clarke in his address. Such a speech as 'that, 
to whatever conclusion it leads, is a speech that fair-minded men should wel- 
come, and concerning which fair di.scn.ssion can be had; and with the highest 
respect to the emotions of some of the other gentlemen. I must resijectfully 
say that it is the only speech that I have heard since I have been here that 
requires consideration. 

Last July I took considerable time, as, !)efore this entire debate is closed I 
shall ask to take some time again, in asking .vour honor to discriminate between 
those who are using Niagara power. The i)ower that one man takes from the 
Niagara Kiver. an amount of power which is absolutely inappreciable in its 
effects upon the river, does not .iustly condemn that man or his investment to 
denunciation or destruction because of that wliicli may be done by others who 
come after. I have insistetl upon that Itefore. and I shall insist upon it again 
with all the force that I can command. I wish gratefully to acknowledge the 
contribution to that feature of Prof. Clarke. wh(un I never saw before, and of 
whom I never heard before except for his high official position, and whose 
statement in that particular in recognition of the Niagara Falls Power Co. 
was as entirel.v impartial as I believe it was effective. 

I'rof. Clarke uttered his sentiments with reference to nature, with reference 
to natural oI>jects. with reference to this particular natural object, in some 
respects the greatest of all natural ()l>.iects in the world, and certainly tihe 
greatest natural object in northeastern America, and he exi)ressed his interest 
in it and his love for it. He expressed his desire to )ierpctuate and to protect 
it, even, if left to himself, to the extent of going to the very point of prohibit- 
ing the use of any water of the Niagara River for in<lustrial purposes; and he 
seemed to suggest what Gen. Ernst intelligently and acutely observed in his 
report a .vear ago. that the characteristic quality of Niagara which impresses 
the human mind is not in its surrounding scenery: not in the general height 
of the Falls, but rather in its volume. When ^ir. James C. Carter made his 
great ad<lress at the time of the opening of our reservation, for New Yorkers 
are not all indifferent to the value of the Falls: no other people have submitted 
to taxation for the preservation of that beauty as they have: we have spent 
millions in doing it- — at the opening of the i)ark resulting from those expendi- 
tures, Mr. Carter made the address in which he attempted to define what it 
was that gratified the human mind in the contemplation of this sublime 
cataract, and linally he came to the point tliat it is '• the sense of power."' 
That is the quality of the cataract that affects the human mind. It is not 
beauty alone; it is not height alone; but it is the volume and velocity plus 
the drop. I do not believe that before these latter days any man ever went 
there, whether or not he had mechanical ideas, without saying, " What could 
that <lo for the use of mankind?" 

I will go further. Prof. Clarke justly imtfesses his love for Niagara I'alls. 
Mr. :McFarland has written much on the subject, but in what he has written he 
has seeuKMl to me to express not sentiment, but sentimentality. I have not dis- 
covered a thought underlying anything he has written that stirs the heart with 
the impulse of recognition of beauty or of i»ower as to the words of Mr. Cnter. 
or the acute definition of (4en. Ernst. 

I will go further. These gentlemen speak of Niagara an<l its beauty. I defy 
anyone in this room or ejscwher*' to comiiare with me in ni.v love for the beauty 
of Niagara. 1 have studied it for more than 20 years from every point. I know 
it; I love it. I have listened to its sound. You think you have. You have 
never heanl it. Prof. Lupton. of Leeds. England, askfcni me one day. " Has 
Niagara a sound?" I said, " Yes, of course; a mighty sound." He said, " When 
I went away and looked at my notebook I could not find that I had entered that 
it h.:<l a sotuid." I said. " I will listen for it." I went there again and Hstened. 
and then inquiretl of a musician. He answered, "Yes. it has a sound, so pro- 
found that it has been questioned what would be the length of the organ piiie 
to iiroduce it." ♦ 

It is not the thunder that you hear. It is not the thunder of the cataract that 
Mr. .McFarland has jiointcd out to yon. It is a deep diapason, that goes <lown 
away, under the bubble and rush of the waters, which is the profound note of 
Niagara. Such is the sound that will control the disposition of the jiresent ques- 
tion as against tlie bubble and froth and foam, not of those of the gre.it American 
peoiile who understand the question, but of those who are engaged in the kiml of 
agitation that amounts to little more than the blowing of soap bubbles. Do tliey 



PRESERVATION OF NIAGARA FALLS. 357 

love Niagara? I love it not less than they. I have followed its souiul. ami 1 
Lave followed its beauty. I have put luy life into it. When Prof. Clarke says 
that he would be glad to see removed all buildings near the Falls. I appreciate 
hi.<5 sentiment, and I go even further than he. I would be willing to give a tenth 
of all I have in the world, and more, to restore all along Niagara Kiver. from 
Buffalo to Lewiston the glorious forests that once .stood there, as now they 
stand on Goat Island: on either side of the stream, to restore it in very aspect, 
in every surrounding, in scenery, in all th;it will constitute the elements that 
gratify the lover of landscapes an<l the glory of nature— following, as many 
time I have followed, the course of the river from (.'hii^jiewa Creek to Lewiston, 
the countei-p.irt of Cole's Voyage of Life: starting in the jdacid waters of the 
upper Niagara, with childhood's innocence of danger; lushing through the tnr- 
l)uleut rapids, and plunging over the cataract, of youth and .early manhood; 
coursing through the lo\\er rajiids in the vigor (f full maturity; ;:nd. at last, 
coming out into life's i)Incid finish as the serene river enters the fond und 
shining embrace of Lake Ontario. 

I defy any of these geit lemon to love Niagara Kiver more than I. The love 
of these who have spoken, in the words of the poet, as compared to mine, " is 
as moonlight to the sunsliiiie. and as water is to wine": I repudiate and scorn 
the idea that any advertising agencj'- or i)ro]mganda. however ])owerful, has a 
monopolv of the love or of the proclamation of love of Niasara and Xiai^ara 
Falls. 

I maintain, then, that I am entitled to sjteak as one who knows and loves, 
and who would respect and perpetuate Xir.gara Falls in all its glory and in all 
its sublimity. Is that a mere statement? Is that contested by my acts? Am 
not I one of these people who would turn that power to conmiercial use? Am 
not 1 one of these i)eople -who are resisting the effvU'ts of the.se others under 
a perversion of the commerce clause of the United States Constitution to turn 
the Federal (ioverument into an. agency to destroy commercial development?' 
Yes; I .-nn; I am one of those. I think that, within reasonable bounds, to this 
extent that it is better for mankind the waters of Niagara River should be 
usefully employed, for we can not now restore the primeval conditions, which I 
would prefer. I go beyond Prof. Clarke and I say that now, if it were possible 
to sweep away the villages (in both banks, to sweep away all structures from 
BuflV, lo to I>ewiston. i-.ud to reestablish the primeval forests, it would be a 
sacrilege to permit mere industry to enter such a scene of beauty and sublime 
power. But the era in which that restoration is possible has i)assed away. 

We are dealing with the era of 1S7S. when, under tbe inliuence of Lord 
Dufferin. Governor General of Canada, and Lucius Uobinson. governor of the 
State of New York, an agreement was reached that upon each side of the river 
there should be a park reservation created and maintained severally by the 
two governments. That movement proceeded to fullilment. so that in 1SS6, 
through the results of taxation, there had been developed and established on the 
American side that jiark which now is a reservation maintained, at their own 
e.xpense. by the people of the State of New York. 

On the other side is a park which, as I understand it. was expressly declared 
shtiuld not bi- made a charge upon the people of the Province of Ontario. So 
the connuissioners of the Qiu>en Victm'ia Niagara Falls Park, for the creation, 
preservation, and maintenance of that park, have been obliged to seek revenues 
from the park itself. Thus, as suggested by Mr. Ely. on the two sides of the 
river you are dealing with two different (piestions. On the Canadian side you 
are dealing almost entirely with the Canadian or Provincial Governn\ent. 

The commissions that then sat on the tv.o sides of the river undertook in the 
exercise of their discretion to determine how much property it w, s desirable 
should be t.iken for the iireservation of the Falls. 

rpon the Americjiu side the State of New York had sold the American Falls 
jtnd (ioat Island, under a soldiers' grant of 1S12, which came into the possession 
of your pred(>cessor in that chair. (Jen. I'eter B. I'orter. The American Falls, 
having been sold to <ien. I'orter indirectly and continuijig in his family ever 
since, bad to be bought b;ick by the State of New York at a price of over 
SWO.dOO. including (Joat Islan.d. Ther(> had lieen no such alienation by the 
Province of Ontario, as far as I understand, though there is ;! gentleman here 
who can answer as to that much better than I can. 

* The principal declared purpose of the Buzton l)ill is to i)reserve n;ivi;iation in tlie 
Ni.-iirnra Itiver where it is inip<>ssilile of navigation. Tlie only I)asis in the ronstitution 
of Federal intervention is tlie eoninieree elaiisiv This now is iuv<>ket4 to counteract what 
is termed "■ coninnTcialism," Thus tlu' eoiiinnTi-f elausi- is turned against itself. 



358 PRESERVATIOX OF NIAGARA FALLS, 

At iill events, on each side of the river the t-onnnission exercise<l its juris- 
diction an<l .iudfrnient as to how nuich of the territory surroundinjj; Nia.^ara 
Falls was necessary for the preservation of that object. They made their de- 
cision, they made i)urchases, and they established their two reservations. 

The se\eral governments then passe<l acts permitting the establishmeiit of 
power comjiaiiies. On the American side the act was drafted by my eloqncnt 
and esteemetl friend ^Ir. Ely. and therefore he and his associates, all residents 
of Niagara Falls and largely riparian owners, were constituted a corporation 
at Niagara, with power to talie the waters of Niagara for purposes specitietl in 
the New York statute of 18S(j. That is the origin of the Niagara Falls Power 
Co.. of which I am now speaking, and of which I am a reiiresentative. and 
which has been kn(»wn as the pioneer in the electrical works. On that particu- 
lar point I will presently have something further to stiy. 

Tender tht)se conditions that company got no property from the State of New 
York. That conijiany or its originators owned the water front of the Niagara 
Kiver for 2 miles next above the highest point to which the conmiissioners 
deemed it <lesirable to carry the reservation for the protection of the Falls. 
Certainly, then, there was no thought of encroaching upon Niagara. That was 
when the question was fresh. It was the agreement of the State, it was the 
understanding of the people, and several times it has since been decide<l that 
that right of the rijiarian owner was such as to entitle the corporati(ms thus 
constituted to di'aw the water for the purposes of these manuf;ictures, not- 
withstanding it was a boundary stream an<l notwithstanding it was a navigable 
stream: and here I may refer to th(> decision of Judge Childs in the case of 
Smith r. Hydraulic Co. (TO App. I>iv., 7Ao). which Mr. Itomer knows so well, 
and which was afHrme<l by our court of appeals (175 X. Y.. 46!t). 

That was the position upon our side of the water — a corporation forn)ed by 
these gentlemen living at Niagara, in advance of the coojieration or ]iarticipa- 
tion of any of those (excepting Mr. W. B. Uankine) now or for many years 
interested in the Niagara Falls I'ontn* Co. 

On the Canadian side of the river a similar act was imsstnl: and .Mr. \N'o.i<l- 
ruff's statement this morning that all these Canadia.n comjianies had i>een estab- 
lished ])ecausc their ]»ronioters were unal»1e to obtain the power on the side of 
the T'nited States, was made in violent error as to the facts, certainly so far 
as ciM.icerns the Canadian Niagara Co. 

The Canadian concessions began as early as the American : and they began 
for the reason I have pointed out, that the Canadian commissioners were de- 
sirous of obtaining from the use of the park itself. Queen Victoria Niagai-a 
Falls Park, the means with which to sustain the park. And thereupon a pum- 
ber of Canadian gentlemen and Englishmen joined under the Canadian act in 
forming the association which possessed the Canadian right in the i>ark. That 
had been done entirely anterior to the incursion of the so-called vandals. Mr. 
D. O. Mills, Mr, J, Pierpont Morgan. Mr. Morris K. Jesup, myself, and others, 
who now are supposed to be lacking in interest in beauty and art. Before our 
incursion all this which I have descril)ed had been accomplished by law. and 
these properties were on the market. Somebody was going to develop them : 
and in 1SS7 or 3SS8 began the discussions which, in 1890, resulted in the present 
group of capitalists acquiring the Niagar.-i Falls Power Co. They never asked 
anything of the New York I'ark Connni-:sioners They had no occasion to aslc 
anything of them. They were not dealing with any property under control of 
the park connnissioners. They were dealing with property entirely above and 
outside the ]iark. 

This proceeding on the American side ran on for two years, wlien I was 
approac hcd personally by Col. Albert I). Shaw, formerly a Member of C(jngress. 
formerly counsel at Manchester, and formerly consul at Toronto, where he 
became interested in Canada. He said, " We are going on to build on the 
Canadian side unless you will buy our right." What did we do'? We bought 
the charter after it had been offered to us. We did not go and seek it. .Mr. 
Woodruff is entirely mistaken in sui)posing otherwise. We bought that charter, 
and then what did wc doV We let it lie dormant for nine years. If we had 
not thus imrchased. you would have had a Canadian development twice as 
large years ago. That shows how little eager or pressing we were for the 
purpose of interfering with the tlow of the Niagara. 

We come now to the year 1892. On our side we had sunk our shaft in 
October. 1890. By that date we had made engagements involving millions of 
money, when that gentleman, who has gone to his rest, and for whom I have 
a high respect for his niany services to the public, and at one time we were 



PRESERVATION OF XTAGAKA FALLS. 359 

close friomls, Mr. Aiulvcw II. Green, who was .1 w.ilcbdog. if there ever was a 
watchdoiir. made the seventh annual report for the Niagara Falls Park Com- 
mission in whieli he made statements concerning our proposed work, which I 
will submit with my remarks.^ That is the first report that was made about 

1 From Seventh Annual Report (pp. 11-12), Jan. 29, 1891 : 

•• The water power of the river is, however, soon to be made use of in a hij^hlj- re- 
markable and original way, under the direction of the Niagara Falls Power Co. This 
company is composed of prominent business men at Niagara Falls, and from the circular 
which they have recently issued the followiug information is derived : 

•■ Befiinnini; at the water level below the Falls a tunnel is to l)(> constructed 29 feet in 
height by 1.S feet in width. It will e.xtend through the solid rock underneath the 
village to the upper river at a point about ] mile above the Falls. From this point the 
tunnel is to continue parallel with the shore of the river IJ miles, at an average depth 
of 100 feet below ground, and about 400 feet distant from the navigable waters of the 
river, with which it is to be connected by means of surface conduits or canals, through 
which the water from the river is to enter and be drawn through the shafts and wheel 
pits in to the gi'eat tunnel below. The water will fall upon turbine wheels in the pits, 
and the power developed thereby will be brought to the surface and delivered to mills or 
factories, or be transmitted by cable, pneumatic tube, or electricity to other points. The 
company has purchased about 1,300 acres of land near the reservation. This land will 
be used for mill sites and dwellings for operatives. 

" By the act of incorporation the power granted to the company by the State ' shall not 
in any sense be construed as permission to cross, intersect, or Infringe upon any part 
of the lands of the State reservation at Niagara.' 

"A communication from the State engineei- and surveyor concerning the effect upon 
the American Fall of the diversion of a large amount of water of the river into the 
proposed tunnel, is appended to this report." 

The State engineer's report was as follows : 

I Letter from John Bogart, State Engineer and Surveyor, as to the division of wali-r 
near Niagara Falls. State of New York.] 

Office of the St.\tk Exuinekr and Slrveyok, 

Albany, N. Y., December J, IS90. 

lion. A.XPUKW II. (iUEKX, 

Presithnt of the ComDiissionrrs of iJic 8t(ite Reserration at Niaffara. 

De.vu Sir : In accordance with your request I have considered the question of the effect 
upon the American Falls of the diversion of the water which may be taken by the tunnel 
now being constructed at Niagara. I have visited the Falls and the point where it is 
proposed to take the water from tlic river by a canal, this water afterwards passing 
through wheel pits to the tunnel referr(>d to. The entrance to the river from this canal 
is in the navigable part of the river about 1. ."-!(> miles above the Falls and 1 mile above 
the head of Goat Island. It is about half a mile above the entrance to the jiresent hy- 
draulic canal and entirely above the rapids. In my opinion the water taken into a canal 
at that point will not affect the American Falls specially, because the regular regimen of 
the river will become reestablished before reaching the head of Goat Island where the 
currents to the American and to the Horseshoe Falls divide. The effect of the water 
flovping into this canal will therefore be distributed over the whole river, and will not 
at all be confined to one section of it. 

What this effect will be depends upon the relation of the volume of water taken into 
this canal to the volume of water flowing in the river. 

The amount of flow over the falls has been variously estimated in ])ast years, bur in 
]8(j8 the volume was measured by the Corps of Engineers of the United States .\rmy in 
connection with the survey of the (ireat Lakes. The flow thus determined varies from 
27.">..">2y cuhic feet per second to 280,757 cubic feet per second. It will, I think, be proper 
to call this 275.000 cubic feet per second, or 16,500,000 cubic feet per minute. 

The amount that can be taken by the tunnel now under construction, if developed to 
its full capacity, may be 10,000 cubic feet i^er second. 

This is .S.64 per cent of the whole flow. 

Tiie actual depth of tlie water at the crest of the Falls can now be accurately observed, 
except near the sides of the F:ills. The depth varies considerably at different points on 
the ci-est. A calculation based upon the observed facts gives 6.22 feet (or feet 2g 
inches) as an aiiproximate mean depth of water a very short distance (less than 10 
feet) above the edge or crest of the Falls when the present mean volume of water is pass- 
ing over: and O.O" feet (or 6 feet and four-fifths of an inch) as the depth at the same 
point wh(>n the volume shall be reduced by the amount that can be taken by the tunnel 
referred to. 

1'iierefore. the depth of water along Hie whole Falls, lust above the crest, may be re- 
duced 1;.* inches by the diversion of water into the tunnel. 

From the operation of a well-known hydraulic law tlie depth of water directly over the 
crest will be somewhat less, the velocity being gr(>ater : but the decrease of depth at that 
point, by the diversion of tlie water, would also l)e less. 

It might be suggested that, as the proposed tunnel may divert :i.64 per cent of the 
total volume of water, the dejitli at the I'alls would be decreased by the same i)ercentage ; 
that is. .■■..(•.4 per cent of 6.22 feet, which would give a decrease "of 2.7 inches. But. in 
fact, the decreased voluni(> will give a decreased velocity, and therefore a greater rela- 
tive depth at the crest. I therefore think that 1* inches is the probable amount of the 
mean reduction in depth at the Falls to be caused by the tunnel diversion. 

In conclusion, it is mv opinion that the amount of water that can l)e taken through 
this tunnel will not affect the depth of water tlcwin-r over the Falls to an extent that will 
he visible. 

\'ery respectfully. Johx Bog.art, 

State Engineer ami Surri ii<,r. 



380 PRESERVATION OF >,'IAG.VRA FALLS, 

our work aud it was oublislied by way not of coudemuation but comniendatiou. 
lu the report of that coiuuiission for 1800, submitted to the legislature January 
29. 1801. you will find it stated that a liitrhly roiiiarkable and original develop- 
ment of power was about to be made by the prominent business men at Niagara 
I'alJs. We understood that Mr. Green and his associates considered this to be 
an interesting and desirable undertaking. AVe had no word or suggi'stion ot 
oiU'OsiLiou from them or from anyone else luitil long after we had c(;mmitted 
ourselves publicly to our undertaking, beginning work iu October. 1800. 

The report for 1891 called attention to the diminution of the water in the 
Niagara Kiver. You will find it in the Eightli Annual Report. 1891, sub- 
mitted to the legislature January 29. 1S92.' I shall submit it with my argu- 
ment. It called attention to the low water in Niagara Kiver, and to the incep- 
tion and progress of the works, and it left it to the public to infer whether or 
not those works were the cause (tf tliis low water. That shows t)'e inconse- 
quence of mere impressions. That low water, tlnit now we hear so nuuh about, 
was connnented ujion in the report for isoi. which was three years before our 
tunnel was bored through. That goes to show how even most intimate and 
forcible observers may be misled. The complaint of the efiect upon the Niagara 
River was m.ule three years bef< re our tunnel was bored through, and from 
persona] observation I may say the water then was lower than it is now — and 
for a series of years it had been lower. 

Secretary Taft. Was there not a company before yours taking out water'.- 

Mr. Stktson. Pardon me. I sjteak <tf electrical 

.Secretr.ry Taft. I imderstand, but with reference to the withdrawal of witter. 
T mean. 

,Mr. Stktson. There was one prior to ours. 

Secretary Taft. AVhen did that come? 

Mr. Stetson. That company began to draw water. I should say. about 1S.")7. 
Mr. Romer is here and can state the facts better than I can. How many horse- 
power do you think you were developing when we Ciime. ^Nlr. Romer V 

Mr. RoMEK. We began in 1853. not in 1857. I think. At that time there 
was only one tlour mill that was taking power, and that ground about 40 
barrels of flour 

Mr. Stetson. 1 me.in when we came in 1889. how much do yon supiiose you 
were taking? 

Mr. RoMF.K. Possibly 10.000 horsepower. 

Secretary Taft. I did not know but that the report referred to that. 

Mr. Stetson. Oh. no; that had been going on for years, that 10.000 hoi'se- 
power. Mr. ^LcFarland said Ihis morning that you could not take out the fifth 
of a glass of water without noticeable los.s. But I think that you could take 
out a fifth of a glass out of the Atlantic Ocean and not notice it. Not even 
Mr. McFarland could have discovered the loss of 10.000 horsepower out of the 
Niagara River. Th:it was not the qiiestion at all. 

Now I have led iii> to what was actually done by those connected with the 
pioneer electrical development. Here was no assault by those gentlemen, who 
have been sarcastically called " our grand dukes," upon the rights of the 

'From Ei;:hth Anunal Koport. .liin. •_•!>. IsOi'. p. Sit. 

Accordiiiii to stateiiienls i-eccnily ma<lo. thci-e lias been a noticeable sinkin.i; of the 
water level of Lake Erie. ^Viu•n this condition exists, the Niagara Kiver necessarily 
becomes shallower and tlie volume of water at the Falls diminishes. To the inexperienced 
eye of the tourist this fact may not he perceptihle. but a fact it nevertheless seems to be. 
The water in' the river has durinjr the past year been exceptionally low. In the lower 
river there has been a fall of sev(>ral feet, so that it has at times been difficult for the 
steamboat Maid nf Ihe Mixt to effect a landing at the dock near the foot of the Inclined 
Railway Huildin.g. 

The Maid of the Mist .Vssociation has petitioned the commmissioners for permission 
to extend its dock, in order that landings may he made at any time. There can he no 
doubt that Ihis extension is necessary with the rivei' at its present level. 

Till' commissioners are unable to state with any accuracy the cause of the low water. 
But the commissioners deem it advisable to sng.gest that the h>gislature scrutinize with 
great care ;ind even refus(> t;) enact .-ill bills the obji-ct of which is the utilization of 
tiie water jiower of the river above the Falls for manufacturing and other purposes. 
The I'^alls themselves, being within the limits of the reservation, are no doubt secure from 
successful attack, but hardly a session ))asses without the introduction of one or more 
bills in Ihe interest of companies organi7,(>d for the purpose of utilizing the water power 
of the Niagara River, with the sanction of the legislature. 

The commissioners do not mean to imply that these undertakings are necessarily 
without merit: but. without relleclion on i)ast .-ictlon. it is undeniable that if the legis- 
lature shall continue to authorize (li\ersions of the water of the river the volume at 
the Falls will constantly diminish, and the level of the river, both above and below the 
I'alls. necessarily sink. 



PEESERVATTOX OF NIAGARA FALLS. 361 

public at Xiasara. On the American side what was done was ])ro.iected l)y citi- 
zens of Xia.trara Falls who owned the ri])arian lands. On the Canadian side 
the project was authorized by the Goveriunent itself, in order to create and 
maintain the Canadian Park. That is the orisrin of the two pioneer corporations 
for whicii I speak, and which were endeavoring not to injure but to perve the 
public in a new and vastly important way. 

What then did we do? We made an investigation — all of us did — earnestly, 
to see whether there could be a possii)le effect upon the Falls by reason of our 
taking up this first object on the American side, and we reached the conclusion 
to which I will refer again hereafter, that there would not. Rut we let the 
Canadian side rest in order to demonstrate just what our American action 
might effect, that we might proceed with safet.v. We intended, tiien. and 
always we intended, to preserve the integrity of the Falls in all their sublimity. 
Well, the laws haA ing been passed, and we having acquired the rights under 
the laws which we did not originate, we undertook to have what was the 
best possible wa.v of making the development, which should be consonant 
and consistent with the splendid features of this great natural object. 

I will not detain your honor at len.irth as to that, but will state simply 
that we went abroad: that we offered prizes throughout Euroiie amounting to 
$30,000; that personally I made a trip over Europe to look at all the methods 
of power development: that we consulted Lord Kelvin, Prof. Willian.i Caw- 
thorne Unwin, Col. Theodore Turrettini, and Prof. Mascart. of Europe, and 
Dr. Sellers, of this country, and we adopted their recommendations. V>'lien 
Prof. Clarke said this morning that it was our sin that we did not use but 
one-tliinl of the power we might have from the water taken by us. I would 
respectfully repl.v that it is not our sin. If the loss be such, then it is our 
terrible misf(n'tune. Distinguished ]>rofessional gentlemen advised us what to 
do, and we knew of no better or higher authority in the world. We took their 
advice and followed it : and if we could get back to that date most gladl.v would 
w© give Prof. Clarke $500,000 for the formula that would s-ive that other two- 
thirds that he thinks that we are losing.' 

I^iast summer, at Niagara Falls, Mr. McFarland made an assault indiscrimi- 
nately, upon the looks of things, and I asked him if he would come to our plant. 
He went with me, and as he stood in our powerhouse he could not have the 
face to stand up against that most beautiful installation that had ever been 
conceived and say that it was such as justified his remarks. No: he said. " You 
know you are a lawyer, and you know when you are making an argument you 
can not weaken it l\v distinctions " — and so he did not distinguish between us. 
He just said, indiscriminately, that we were all in that condition. 

Now, we have advanced through five years from the beginning. On the 1st 
of June. 1895. our wheels began to turn, and they have been turning continuously 
and increasingly from that time to this, until, as your honor has observed, we 
have brought out from the Niagara Falls Power Co.'s electrical plant the out- 
put, in round numbers, of 85.000 horsepower: and in the h.vdraulic plant, con- 
verted into horsepower, we have substantially, in round numbers. 8.000 more, 
making 01.000 horsepower: and I believe, though I am subject to correction, 
that Mr. Romer's company is producing thirty or forty thousand. 

Mr. Roi[ER. Forty thousand horsepower. 

Mr. Stetson. There you have the result, 131,000 horsepower on the American 
side, which, as yon found this morning, is from an eighth to a ninth of the 
Canadian side in volume. 

That is what is in operation now. It is not a question of what is going to be. 
It is not a question of whether, when you look in the glass to-day you see you 
are a day younger and more beautiful than you were yesterday. It is a ques- 
tion of what has been the effect of turmoil and tedium and resistance to 
assaults for about 16 years. That is the phase that to-day is exhibited and 
illustrated when you look at what now is the effect of the withdrawal of 
131,000 horsepower from the American side, which is one-sixth or one-ninth 
of the Canadian side. 

Now. Mr. Secretary, it has been my great privilege and pleasure to listen 
to your decisions for many years, and sometimes to hope to influence them. 
Here is a case in which I can not hope to influence your decision, but there 

1 ]n ISOO no .Vnioricnn m.inufnfturer w.-is willinjr to tendpr either a turbine or a 
dynamo of more than .500 hor.sepower capacit.v. We led the wa.v first to 5,000 horse- 
power, and now to 10.000 hor.sepower turbines and d.vnamos. This was an oxperioment 
involving coverage and resulting in great benefit to mankind. 

The story was told fully in Cassier's Magazine, "Niagara Tower Number." .July. 189.5. 



362 PRESEr.VATIOX OF ^-lACiAUA FALLS. 

has been a mightier advocate than I. That river which, unlilve the Nia.i|:ara 
flood admitted by Mr. McFarland into some one of these rooms, thunders its 
cataract over the Falls, spoke to you on the 12th day of July last. You stood 
in front of it and you looked at it. and if you had ever seen it before I would 
defy even your acumen to detect a difference in its flow from the time when you 
first saw it. before there were any mills there at all. I have watched it for 
20 years. Our judgment may be biased. That is all right. Charge us with 
bias : we may be wrong about that. P»ut we insist that our .iudgment is as 
good as that of the gentlemen to whom ^rr. McFarland has reiferred when he 
says " Recent visitors at Niagara Falls report that." Well, we are not " recent 
visitors at Niagara Falls who report that." We are people who have lived at 
Niagjira Falls. We are the people who have done more in a day to attract 
attention to Niagara Falls than even the output from Harrisburg. The world 
has been interested in Niagara Falls as it never was before. The Falls, as Gen. 
Ernst says, are not conspicuous for their height. The falls in Labrador are 
higher; the Znmbesi Falls in South Africa, and the falls in Norway are higher. 
Why is it that the people are interested in Niagara FallsV It is because, to use 
a classic expression, they are "in our midst"; it is because we have invested, 
and for those who are to come after us we have invested them witli human 
interest, and that I say, with great respect, is quite equal to beauty and to 
scenic interest. When yon have got away from the contrary delusion jou 
realize that what we and others have done has been an addition, a vast addi- 
tion, to human interest, and I defy you or any man who can speak the language 
of truth, and keep within the bounds of truth, to say he can detect a differenc^e, 
visuall.v. 

I do not quite understand the report of Gen. Ernst when he says " appreciably 
affect the Falls." Neither last summer, now, or at any time could I willingly 
be dravrn into any statement which seemed to conflict with Gen. Ernst; but I 
can not believe that when he says "appreciable" he means ni)preciated by the 
e3'e. When we are talking about scenic grandeur and beauty we refer to the 
eye oDly. and referring to that organ. I defy anyone truthfully to say that he 
can detect tlie difference belween the American Falls as they are to-day, with 
13] .000 liorsei>ower sul>tracted. and what thej- were 30 years ago, when less 
than 10,000 horsepower was being subtracted.' 

TJial, then, leads me to the conclusion — and 1 hoi^e you may be led to the 
conclusion from an observation of the conditions— that it is pi-actically demon- 
strated that the development of 131,000 horsepower produces no ap])reci{ib]e 
diminution of the American Falls, and. inferentially, that 350,!X)0 hor.sepower 
tnken from'the Canadian side, winch is from G to 10 times the capacity of the 
American side and which, as stated by Prof. Clarice this morning, would not 
affect the American side— I say the inference which you are permitted to draw, 
and which I belie\e you will draw, is that the withdrawal of 350,0t)0 hols«^ 
[lower would not affect the Canadian Falls more than the 131,000 horsepower 
ii;is nffccted the American Falls. 

riUOK AND VREFERENTIAL RIGUT OF CANADIAN NI.\(iAR\ CO. 

In their report the American couunissioners say that Capt. Kutz concludes 
"that ihere is no sutficient reascm for discrimination between tlie Canadian 
companies except their relative ability to command the Canadian market." 

In reiiching this conclusion Capt. Kutz. as a hiyman. naturally enough has 
failed to take into account the consideration to which in equity our Canadian 
company is entitled as the prior appropriator and licenste of the water. We 
annex an Appendix A, showing that at all times our prior and superior rights 
have been recognized by the Queen Victoria Niagara Falls Park Commission, 
and perforce by each of the other companies now claiming their subordinate 
rights. 

Under the established rules concerning water comses and rii^arian rights, if 
by a iihysicfil convulsion the waters of the upper Ni:igara River were to be 
carried into the Aiuerican channel so as to leave available for use on the 
Canadian side only 100.000 horsepower, our company in equity would bf en- 
titled to the whole of that power though the two junior lessees were to go dry. 
Corresiiondingly. if by the act of law flow of the river available for i)ower 
transmission to the I'nited States is to be reduced to 160.000 horsepower, tlien 
our jimiors should first sufl'er reduction for this purpose to 39,000 horsepower, 



'This also is tlie view of t'liairman Dow and of Dr. nalloctc. quoted at lenjrth above. 



PRESERVATION OF NIAGARA FALLS. 363 

for tliey are not entitled to consideration to tlie detriment of our prior riiilit to 
121,tt00 horsei>o\ver for any and all purposes. The three successive rights of 
the three principal lessees must in equity be reducf^d. if at all, in the hiverse 
order of alienation by the Canadian authorities. I make no reference to the 
International Railway Co., whose rights we do not discuss. 

Another ground ujion which we base our claim to preferential consideration 
is the comprehensiv',' purpose (*f the act of Congress of June 2!». 1900. The 
obivct of this act is to preserve Niagara Falls in their entirely, not the Canadi.an 
Falls alone, nor the American Falls alone, but the entire natural wonder for 
the gratification not of Cana.da alone or of America alone, but for all mankind. 
\Vith this generous purpose I heartily sympathize, provided that it shall be 
accomplished as it can be accomplished with .just regard to himest rights in 
the order of their priorities. In this compreheiisive view of the sub.lect it is 
to be considered that the two companies now reju'esented by me are substan- 
tiall.v one and that their developments have been and are mutually interde- 
pendent. For this reasou we have not resorted to the semblance of a contract 
between them. Thus considered, it will become evident that the Niagara Falls 
Power Co. is suffering more than any other company, for it has been forbidden 
to i)roceed under its charter right to construct in New York a second tunnel 
for lOO.OOO horsepower, for which it has acquired its right of way and has 
made large expenditures. It is also hindered from proceeding under the charter 
right of the Canadian Niagara Co. to complete the second half of its wheel pit, 
filrcidy excavated, for the erection of six 11,000 electric horsepower tnrVtines 
and dynamos. As the greatest sufferers, we submit that nothing slionld be 
conceded to our .iuniors because of their lesser and inferior deprivations. 

THE OXTAIIIO CO.'S POSITION. 

The Ontario Power Co., in its printed memorandum, has submitted certain 
claims for special consideration, to which, in our view, it is not entitled. 

(>i) The claim of the Ontario Co. to special consideration on the ground 
that it uses the water more economically than any other company is not ac- 
cepted by Capt. Kutz (p. 13, clause 27). It may not be irrelevant also to 
suggej-t that as this economy is due to the construction of a power house 
directly and conspicuously in front of the Falls, it is unlikely to be regarded 
as a merit'by those who are seeking to protect and preserve the scenic grandeur 
of Niagara. The construction of this power house directly in Niagara Gorge 
was the sub.iect of timely and vigorous protest by Mr. Andrew H. Creen and 
his associate commissioners to the Canadian commissioners, as fully considered 
in their seventeenth report at page 9. 

(ft) The suggestion that the Ontario Co. is entitled to special consideration 
because it is payiug twice as much rent as any other company is inconqilete. 
It should have been addeil that for each of its grants each of the three Can- 
adian companies pays the same initial rent of $15,000. The Ontario Co. has two 
grants, of which one is upon the Wetland River, which it does not now choose 
to use, but which it is at liberty to use. After the rents, covering 40,000 electric 
horsepower, each of the three companies is to pay exactly the same rent for 
all of its power. Upon the sale of 40,000 electric horsepower two of the com- 
l)anies will pay $37,500 and tlie Ontario Co. will pay $47,500. As the Ontario 
Co. asserts that it has contracted to sell more than 40,000 horsepower it wouhl 
seeuras though now its rental will be not materially more than that of the other 
two .companies. 

If the amount of rental is of consequence, the Canadian Niagara Co., which 
has been paying rent since 1892 — eight years longer than any other company — 
clearly is specially entitled to consideration. These payments up to 190(; are 
shown as follows by the commissioners' reports (19th, p. 11; 20th, p. 16) : 

Canadian Niagara Co $239, 577. 73 

Ontario Power Co 140. 000. 00 

Electrical Development Co 37.500.00 

id) The plant investment in August. 1906. of the Ontario Co. ])roper 
( $5,.>42.000) is not greater, but is less than that of the Canadian Niagara Co. 
($('. 2ri(K(MM)). (See Capt. Kutz's reimrt. p. 7, clause 7: p. 10. clause 16.) 

The additional expenditures by the Ontario Co.'s customer — the Niag.ira. 
Lockport & Ontario Co. — are insiguiticant compared with those of the Canadian 
Niagara Co.'s principal — the Niagara Falls Power Co. — and its subsidiary 
companies in Niagara, Tonawanda, and Buffalo, with their four transmission 



364 PRESERVATKIX OF XIAGAEA FALL8. 

lines, and the many customers all exhibited to Capt. Kutz. The actual invest- 
ment on the faith of this development of the Canadian Niagara Co. has been 
and is more than that of all the other Canadian companies and their subsidiary 
companies combined. 

((•) The prospect of service rendered or to be rendered by tlie Ontario ti-ans- 
mission line is highly colored l)y hope, as shown by the cold facts arrayed by 
Capt. Kutz in section 10 of his report. 

Prooeedinic from a present actual delivery tif 700 liorsepower and a present 
firm contract for only 14.240 horsepower, the Ontario Co. deludes itself into 
the plea that it is to be considere<l on the basis of an actual contract for 90,000 
horsepower if not for ISO.OOO horsei)ower. 

It is notorious that power is used not in si)arsely settle<l country districts 
but in centers of poi)ulatiou. The Ontario tr.insmlssion line runs throu;-'h 150 
miles of rural territory to reach Syracuse, a city witli less than one-third of 
the population and with only yV^ of the manufactured products of Buffalo, 
to which, with its coutiguous outlying districts, the Niagara Falls Power Co. 
now is actually supi)lying 40,(;mX) horsepower with a demand for 5.000 more.^ 
We resjiectfully invite the Ontario Co. to show exactly how nuich power it is 
actually supplying in Syracuse or elsewhere, and also how much power it is 
bound to sup])ly there or elsewhere to any customer other than its subsidiary 
transmission company, i. e.. itself. 

POWKR UELIVKRIES liY OUK TWO COMTaNIKS. 

Upon this jtoint of actual delivery of power, it may be well now to exhibit 
somewhat morp clearly than heretofore the necessities of our two combined 
companies, the Niagara Falls Power Co. and the Canadian Niagara Co. 

To the amount of s.l.iMtO horsepower, slated on ]iages s and 14 of the brief 
of the Niagara. I>ockport «& Ontario Co.. and on pjige 2 of the brief of the 
Ontario Co.. and stated also on page 11. paragraph 20. in Ca[)t. Kutz's report, 
as the electrical load of the "combined comi'.anies" (The N. F. P. Co. and 
C. N. P. Co.) must be added, aijproxlmately S,.")tM) horse[)ower, the amount of 
the Niagara Falls Power Co.'s hydraulic load delivered to the International 
Paper Co.. and not converted into the form of electricity 

As a matter of fact, Capt. Kutz somewhat underestimated the n)axinium 
electrical load of the combined companies. During the winter of IDO.VO, it was 
substantially 00,000 electric horsepower. Adding 8,500 horsepower hydraulic, we 
have, at that time, a combined load closely approximating lOO.WK) horsepower. 
(See Appendix C.) 

With the adequate i>rovisions for reserve and for necessary rejiairs. in prac- 
tice and under present conditions, the American electrical plant working to its 
capacity can not be relied upon for S5,(X)0 horsepower. 

The printed statement made by the Nia.gara Falls Power Co., and submitted 
to Capt. Kutz. under date of July 27, lOCMJ, gives the i)ower contracts of that 
conii)any in detail, and shows an aggregate of 107,740 horsepower subject to 
call thereunder on the American side. The originals of these contracts also 
were all submitted to Capt. Kutz, and those for larger amounts of power were 
gone over in detail by him and by his associate. Mr. Faust, of the Department 
of Justice. The printed statement of the same (Niagara Falls I'ower) com- 
pany to the Secretary of War. dated July 3. lOfK), gives the amount called or 
in use under eac-h of these contracts. This amount then aggregated 102,550 
electric horsepower. Since that time several power consmners have increasoil 
or called for additional power in a considerable amount — notably the Niagara 
Electro-Chemical Co. which is now instiilliug additional electrical apparatus 
to use up to a maximum of 4,500 electric horsepower; The Pittsburgh Keduc- 

lAs may be seen by reference to Census Bulletin 57 nlie.idy quoted, the value of manu- 
factured products In 1905 was as follows: 

Buffalo $172, 115,100 

Niagara 16, 915, 786 

$189, 0:50, 880 

Rochester 82, 747, 370 

Syracuse S4, 823, 751 

Lockport 5, 807, 908 

123. 378, 959 

312.409, 845 

Tlie lighting and transportation requirements keep pace with the manufacturing 
conditions. 



PRESERVATION Or NIA(iAKA FALLS. 365 

lion Co. to use up to a niaxiuiuni uf ai)i)r(jxiui;Uely lU.OUU liorseiiowcr, and tlie 
Union Carbide Co. up to 25.000 li()r.se])ower. The Cataract Power & Conduit 
Co.^ the Buffalo distrilniting a.uent of the cdinbiued couipauies, ah-ojuly during 
the present month has called ui)on our eombiued companies to provide at their 
po\A-er houses, a maximum whicli with the Tonawanda demand will call for 
40.(K)0 electric horsepower, and durinj^ the month of December will require pro- 
vision, at the power plants, of not less than 5,000 electric horsepower in addi- 
tion to the amount last mentioned. 

The amount of 25,000 electric horsepower which the Canadian Niagara Co. 
is transmitting under the provisions of its temporary i)ermit has been barely 
suthcient to supply the pressing demands of the present use of our combined 
companies. Except for the fact that on account of unexpected dilttculties in 
construction and in crossing certain properties with its cables, the Canadian 
company was delayed, the entire amoiuit of the present temporary permit 
ah'eady would have been used in Buffalo alone, in which case the American 
company would not have been able to supply the present enlarged demand ou 
its own lands in the city of Niagara Falls, N. Y. 

It is true, as stated in the memorandum of the Niagara, Lockport «& Ontario 
Co., that our original application for 121,500 horsepower is for an amount 
which, in the opinion of Capt. Kutz, exceeds by 500 horsepower the present 
capacity of the plant, which he states "were designed for the production of 
121,000 horsepower " ; that is, 11 units each of a capacity of 11.000 horse- 
power. His deduction of one of the units as a spare, so as to put the company 
on the same basis with the other two Canadian companies, disregards the fact 
that in the case of our company reserve will be provided by the Niagara Falls 
Power Co. on the American side; and therefore our original application should 
have been not for 121,500 horsepower, but for 121,000 horsepower, which, as 
stated in Capt. Kutz's report, is the ultimate full capacity of our Canadian 
plant. 

When the installation of the electrical machinery above referred to is com- 
pleted, the combined companies, at times of maximum load, will require the 
entire available output of both the American and Canadian plants in order to 
supply the power demands now under contract. 

THE t'I..\IMS OF THK TWO TKANSMISSION COMPANIES. 

To the separate claims of the two transmission companies, the Niagara, 
Locki»ort & Ontario Co. and the Niagara Falls Electrical Transmission Co., we 
consider it unnecessary to make separate reply, for their claims are merely in 
support of their several principal companies in Canada. 

With reference to the Niagara Falls Electrical Transmission Co., it does not 
appear that it is legally authorized "both for diversion and transmission" 
so ;is to come within the scope of the second section of the act. 

THE cr.AlM OK THE ELKCTRICAE DEVELOPMENT CO. 

The claim of the Electrical Development Co. for equality of treatment does 
not seem to us unreasonable if disiiosed upon the basis of priority of the three 
companies in the order of their establishment. 

In other words, we would not deny that in fairness each of the three com- 
panies should be permitted to transmit to the extent of its capacity as de- 
velojted or really in course of bona fide development prior to congressional 
action. But if it shall become necessary to limit the exercise of these rights, 
then, equitably, the discrimination should be inversely in the order of priority. 

CONCERNING INTERNATIONAL TREATY. 

Mr. McFarlaud rests his two •emergency" calls particularly upon the 
propositions, first, that congressional legislation will prove ineffectual unless 
supplemented by an international treaty; and, secondly, that " contidential 
advices from the Slate Department at Washington indicate the improbability 
of success in negotiations with Canada for the treaty unless the United State's 
shows a real desire to preserve the Falls." 

Thereupon Mr. McP'arland proceeds to make the following statements: 
(a) "The United States is now in a position to either save or ruin Niagara 
Falls. If Ave freely admit all the electricity the Canadian companies want to 
send in, wo divert the water from the Falls as directly as If we had control of 

28305—12 24 



366 PRESKHVATIOX Ol' NTAGARA FALLS. 

the Caiiiidiaii fioiuicr. If (lie United States denies admission to this iiower 
it will not be in-'iduced, and the glory of Niagara will continue." 

(6) ■• Insist respectfully that he (Secretary Taft) refuse to aduiit any power 
from Canada not now being admitted. l)ecause in so refusing he will be pre- 
veJiting the depletion of N'iagara." 

It is hardly conceivable that the author of these two sentences above quoted 
could have seriously considei-ed their etfeet upon an effort to promote an inter- 
national treaty, which must be written, if at all. with the free will of Canada. 
How could he. or those who think with him, possibly expect that the friends of 
Canada would concede a treaty to those who by indirection and through Ameri- 
can authorities are virtually proposing in this particular to accomplish the 
"control of the Canadian frontier'"? 

The fair disposition of the Canadian authorities is plainly shown in the 
unanimous conclusion of the members of the International AVaterways Commis- 
sion, both of the United States and of Canada, as embodied in the report of 
May 3, 190U, transmitttil to Congress by President Iioosevelt under the date of 
May 7, 19<)G. (See jtamphlet entitled "Preservation of Niagara Falls, H. R. 
18024," p. 283.) 

In this report the connnission stated that while it was not fully agreed as to 
the effect of the diversion from Niagara Falls, all were of opinion that more 
than 3G,000 cubic feet per second on the Canadian side of the Niagara River or 
in theJS'iagara peninsula, and 18,500 cubic feet per second on the American 
side of the river, could not be developed without injury to Niagara Falls as a 
whole. Accordingly the International Commission confined its recommendation 
to these ligures, conceding twice as much draft upon the Canadian side as on 
the American side, jirobably because of the greater depth of water at the 
Horseshoe Falls. But it was stated expressly by the Canadian members that 
their assent to these conclusions was given only upon the understanding that 
any treaty or ari-angement for the preservation of Niagara Falls should be 
limited to the term of 25 years, and should also establish certain principles, 
including the right of each country to an tHjual share of the diversion of inter- 
national waters whether navigable or nonnavigable. 

In the face of this reasonable declaration, how could anj-one imagine that an 
international treaty would be facilitated by the suggestion that by discriminat- 
ing against Canadian diversion and importation the United States in this jiar- 
ticular may virtually control the Canadian frontier".' 

^^'e should all concur in the unanimous conclu.<5ion of every member of the 
waterways commission, Canadian as well as American, that " it would be a 
sacrilege to destroy the scenic effect of Niagara Falls"; but we must recognize 
also that while Niagara Falls is a wonder. " fair play is a jewel." Such an 
indirect attempt to control the Canadian output certainly would not lead to the 
Canadian belief that we were disiwsed to play fair. 

To a considerable extent the Canadian Niagara Co. represents Canadian capi- 
tal, but to a still larger extent. Anserican capital. Nevertheless, it is a Canadian 
company, entitled to the protection of its Canadian contract, and cheerfully 
recognizing and prepared to fulfill its Canadian obligations under that con- 
tract. As stated by me at the July hearing, it desires the opiwrtunity to use 
lu the United States all of its power not required to meet the Canadian de- 
mands under that contract, to which demands, when received, it will make 
prompt and cheerful resix)nse. The counsel of the Electrical Development Co. 
of Ontario have misapprehended my statement, when they say that our " com- 
pany is not desirous of entering into any contracts with the Province of 
Ontario." Of course the Canadian Niagara Co. is desirous of remunerative 
business in Ontario as well as elsewhere, and has submitted a most reasonable 
bid to the Ontario Government. Here and now the Canadian Niagara Co. rests 
its case upon a consideration of its rights as a Canadian corporation, and 
not upon any pretense that, representing American capital, it has therefore any 
particular right of hearing which is not open equally to the P^lectrical Develop- 
ment Co. of Ontario, representing especially Canadian and English capital. 

The three applications of the three Canadian companies for the right of 
transmission can not be. and will not be, decided by .vou upon a consideration of 
the nationality of the holders of the corporate securities. 

How essential is the right of transmission, even in the view of the Electrical 
Development Co. of Ontario, is stated in the brief of that company at page 3, 
where it points out that if the amount of power which can be sold by interested 
l>arties in Canada is to become a basis of division of power to be imported into 
the United States, "each of the comi>anies would doubtless willingly abandon 



PRESERVATION OF XIA(iAKA FALLS. Bttt 

all gales in ranada, so as to be permitted a laiiier entry into the richer markets 
of the United States." 

This frank declaration of the Electrical Development Co. — Canadian both in 
incorporation and in membership — serves to indicate not only its own slight 
appreciation of its home market, bnt also the sense of in.jnstice that wonld be 
induced generally in Canada by unjust discrimination against the right of im- 
portation of Canadian ])ower. 

Since writing the foregoing we have received Mr. McFarland's tliird emer- 
gency call, dated November li). in which again he complicates the possibility of 
international arrangement by the following extraordinary plea : 

"Now there is another opportunity. Because Canada, while jilanning to pro- 
duce 4ir),000 horsepower in destroying Niagara, can herself use less than 50,000 
horsepower, her power companies i)ropose to sell it in the United States. Here 
is our opportunity. The Secretary of War controls absolutely the admission of 
this power. If he shuts it out, the water whicli would otherwise be harnessed 
for the power companies will,thunder its way unfettered over the great ciitaract. 
" Inclosed are some Niagara [a-eservation ])osr cards. Get each one Liuickly 
into the hands of a man or woman who cares a single cent for Niagara, and let 
Secretary Taft thus see what the county thinks of the claims of the power com- 
panies. Ask him to admit no Niagara electrical power from Canada." 

If this plea for the total exclusion of Canadian power were to prevail, the 
following results would happen : 

The companies which have invested large sums of money in the estal)lislnnent 
of their worlis would find their investments unprofitable, except to the extent 
that they could find consumers of power in Canada. Can anyone be fatuous 
enough to suppose that thereupon the companies wonld not seek to protect their 
Canadian investments by Canadian development, welcomed and assisted by the 
Canadian authorities? Such establishment and development in Canada, of 
course, would involve such concessions in the cost of Canadian power as would 
afford sufficient inducement to Canadian users. But with sufficient concessions, 
the cost of Canadian jKiwer <'Ould be brought so low that no r;, Hvoi'.d in the 
Province of Ontario could afford to forego the use of electricity from Niagara. 
Such operation would supply a market for Canadian power vastly in excess of 
any figures yet suggested. The Canadian Niagara Co. already has its line to 
Fort Erie, opposite Buftalo, and already contemplates considerable development 
in that vicinity and elsewhere, which ultimately may make it indifferent whether 
or not Canadian power .shall then be transmissible into the United States. 

Thus, in the end, the volume of water taken from the Niagara River would 
be not less than tlie amount which would have been taken had the Canadian 
power been admittetl into the United States: while the United States and in 
pai-ticular the State of New York would lose, through the establishment in 
Canada of industries which otherwise would have been established in the 
United States. 

Speaking for myself alone, and not for anyone else, 1 do not hesitate to ex- 
press the belief that the Niagara Falls Power Co., having a New York charter 
right for a second tunnel in the city of Niagara Falls, could view with compara- 
tive equanimity a positive prohibition of the admission of any power from the 
Canadian side. Nothing could tend more directly or more effectively to make a 
reality of the Niagara monopoly which :\Ir. McFarland has regarded as poten- 
tial. (First emergency call, section 9.) 

The revealed puri)0se to coerce Canada into a treaty by laying an embargo 
upon power importation into the United States of course would affect Canadian 
development. tSee Capt. Kutz, p. 14, sec. 20.) 

Thus again we are led to doubt that the author of Mr. McFarland's emergency 
calls had formed an intelligent puriJose as to the practicability of an interna- 
tional treaty limiting the Canadian rights. 

CONCLtTSION. 

Upon these considerations, as well as upon those presented last summer, we 
ask the favorable action of the Secretary of War upon the application and the 
supplemental application heretofore submitted by the Niagara Falls Power Co. 
and the Canadian Niagara Co. for a permit to transmit Niagara power from 
Canada into the United States, the exact form of the permit to be submitted 
after decision of the principle. 

Francis Lynde Stetson. 
For the Niagara Falls Power Co. and the Canadian Niagara Go. 



368 PRESKRVATION OF NIAGARA FALLS. 

Appendix A. 

THE PKIOKITY OF THE CANADIAN NIAGARA CO. 

The Cauadiuii .Niagara Co. is and always has been recognized by the Queeu 
Victoria Niagara Falls Park Commissioners as the "pioneer company." (19th 
Kept, pp. 12-13; 18th Rept., p. 5.) 

The first contract between this company and the commissioners was made 
April 7, 1892 (IGth Kept, p. 14) ; the modifyinj? contract Jnly 15, 1899. (14th 
Itept., p. 11.) 

Clause 11 of the modifying contract (p. 17) provides that if from any cause 
the supply of water at the point of intake should be diminished the company 
should have no claim or right of action against the commissioners "nor give to 
the company any right of action against other licensees or grantees of the com- 
missioners in respect of any diminution not substantially interfering with the 
supply necessary for the company." The subordinating effect of this clause has 
been forced ujion the recognition of each of the junior lessees. A substantial 
interference would result from the proposed diminution of our available supi)ly. 
Under this contrisct the Cnnadian Niagara Co. began its work May ol, 1901 (Kith 
Kept., pp. 5-11 ) before either of the other companies had even acquired a right 
to their present works, and long before such works were begun. 

Tlie Ontaiio Tower < 'o. <'ntere<l into its Hrsl contract with the cnniiuissioners — 
that concerning the wat»'rs of the Wellaud liiver — April 11. ]9<M» n4th Keiit.. 
)). 25: K.'th Ke)it.. i). .'i : 19th Kejit., p. IJ), and its second ccmtract — that con- 
cerning tlie Ni.iirara Kivcr and its prestnit and onlv constructetl works — August 
15, 1901. (16th Report, p. 19.) 

The rights of the Ontario Co. were expressly subordinated to those of the 
Canadian Niagara Co. by clauses 7 and 8 of the second Ontario contract, which 
were as follows (16th Kept., p. 21) : 

" 7. Provided, That the works on the premises delineated on the plan hereto 
annexed shall not interfere with or deprive the Canadian Niagara Power Co. 
of the right to construct, operate, and maintain the underground tunnel leading 
the waters of the Niagara River from the power houses and wheel pits which 
they are about to erect and develop in pursuance of the several agreements 
entered into between the Commissioners of the Queen A^ictoria Niagara Falls 
Park (herein styled the commissioners), bearing date 7th April. 1892: 15th 
July, 1899 ; and 19th June, 1901. 

" 8. And the company shall indemnifj' the commissioners from all claims or 
demands by any person or persons whomsoever, whether arising by reason of 
the exercise by the company of the powers, rights, or authorities or any of 
them conferred by the hereinbefore recited acts of the Parliament of Canada or 
either of tlicni, or by reason of anything done by the coujpany in the exercise 
thereof affecting any property, rights, or privileges heretofore by the commis- 
sioners granted to or conferred upon any person or persons whomsoever, or 
enjoyed, used, and exercised by any such person or persons under the conunis- 
sioners; it being the intention of this agx'eement that should the company in 
the exercise of the aforesaid powers, rights, and authorities so affect any such 
property, right, or privileges granted by or enjoyed under the connnissioners, 
the company shall fully indemnify the commissioners in respect thereof." 

The OJitario Co. did no work niion its present plant prior to December 
31, 1901 (16th Kept., p. 4), but began such work shortly after the delivery of 
the third agreement dated June 28. 1902, which was not validated until August 
7, 1902 (17th Rept., p. 12), after the Canadian Niagara Co. had spent and 
incurred more than $1,500,000 upon its entire plans for the full development 
of 100,000 electric horsepower. (17th Rept, p. 50.) 

The IClectrical I^evelopment Co. (Toronto & Niagara Power Co.) through its 
promoting syndicate made its first agreement with the connnissioners January 
29, 1903 (17th Rept., p. 30), long after the vesting of the rights of and after 
the beginning of actual work l)y each of the other two companies, whose pri- 
ority, as in the Ontario contract also, was expressly recognized by the commis- 
sioners. (17th Rept., pp. 12-13.) 

The rights of this Toronto syndicate were expressly subordinated to those of 
tbe Ontario Co. (17th Rept.. p. 32. clause 5) and of all prior grantees, in^ 
eluding, of course, the Canadi.in Niagara Co. (17th Rept., p. 37. clause 17: 
see also 17th Rept., p. 41, clause 5) ; and the syndicate was required to deposit 
$25,000 as a guaranty against injury to works of the Canadian Niagara Co. or 
of the International Railway, by diversion or diminution of the current. (19th 



PKESERVATION OF NIAGARA FALLS. 369 

Itopl.. pp. 1(i-l!); 20tl! Kopt., II. 1<>. ) The prior rights of these earlier grantees 
were also expresslj- recognized in a further agreement dated 9th Januarj% 1905, 
between the Electrical Development Co. and the commissioners (19th Kept., p. 
30, clause 3), which, however, failed of legislative ratification. 

In theif memorandum of argunienr, submitted in l)eceu\ber. 19(»2, before the 
Canadian commissioners (17th liept.. pp. 51. 5:2), Sir Christopher Robinson 
and Mr. Macrae, the couusel for the Toronto company, made the following state- 
ment : 

•' If the Canadian Niagara Power Co. can demonstrate that the taking of 
water in the manner proposed bj' the applicants will cause physical injury of 
a substantial kind to their licensed works, the Government would be justitietl 
in refusing the applicants permission ; but the burden of establishing this injury 
rests upon that company." 

This necessary admission as to the immunity of the physical structures of 
the Ca)iadian Niagara Co. trom injury through the establishment of the works 
of the Toronto company, by necessary implication concedes also the iuununity of 
the Canadian Co. in the operation of its works, from depreciation or diminu- 
tion of its giTiutotl rights in order to enable the Toronto company to operate its 
junior works to their full extent. 

lu other words, the undoubtal right of the Toronto company under its agree- 
ment of January 29, llM)o. to use the Canadian reservation waters therein 
granted, is a right to take such waters only to the extent that they are available 
after the prior grants of the commissioners shall have been fully satisfied. This 
priority of right entitles the prior licensees to preferential consideration, ac- 
cording to their prioiities, whenever nud wherever conflict in respect thereof 
may arise among the several licensees. Certainly it should not be overlooked 
in the present discussion, which is to be concluded upon a full recognition of 
all the erpiities of all the parties. 

Fkancis Lyndk Stetson, 
For the Niagara Falls Power Co. and the Canadian Niagara Co. 



AprENDix B. 

American Civic Association, 

Office of the President, 
Harris'burg, Pa., Decanher 1, 1906. 
Mr. A. C. Douglass, 

Niagara Falls, N. Y. 
Dear Sir : I have never made to anyone, consciously, a misleading statement. 
I recognize your entire honesty of purpose also. And I therefore, as I told you, 
proposed to obtain the details as to the statement I made in regard to the 
reduction of the crest line of Niagaia Falls. 

Hon. Charles M. Dow, of Jamestown. N. Y., chairman of the New York State 
Reservation at Niagara, has replied to me by v»-ire, referi-ing to pages 16S and 
169 in the report of the hearings before the Conmiittee on Rivers and Harbors, 
giviiig his statement in my presence, and. I think, in yours, on April 21 last, in 
regard to this matter. 

If you will look this up you will see he made a clear-cut and definite state- 
ment, which fully su])porte<l my statement. ^Vhen you made your explana- 
tion on July 12 last, I did not understand in any sense that it refuted Mr. 
Dow's statement, but I did understand you to say that the amount of water 
that was cut off by the change in the crest line was of a character similar to 
that then falling from the precipice near the Goat Island shore, and I called 
the Secretary of War's attention to this at the time, as you may remember. 

The letter printed in Mr. Stetson's brief is, of course, conclusive evidence of 
the fact that this was not done for the interest of any power company. I could 
not know of this evidence, naturally, four months in advance of its presenta- 
tion. I will not use the statement again in the same form. 

I am glad to note that you have been made mayor of Niagara Falls. * * * 
We differ in this matter, but I see no reason for calling names. 
Yours, truly, 

J. Horace McFari.and, President. 

P. S. — I should be glad if you would call this statement to the attention of 
Mr. Stetson, whose address in New York I do not know. 



370 PRESERVATION OF N'lAGAKA FALLS. 

DKCKMiitu Tt, ]!)(Ki. 
J. IIoRACK McFAiu.ANn. Es(|. : 

Dear Sir: I have received ihrongh Mayor-elect Douj^his, of Niagara Falls. 
your letter to him of December 1. which you requested him to bring to iiiv 
attention and in which you undertake to modify the statement which you have 
published to thousands of iteoi)le, that the Canadians already had cut off 500 
feet of the Hor.seshoe Falls " to accommodate a power company." and, ajiain, 
•■ to pive a l)etter chance to one of the power companies." 

I oliserve that you re-iard as conclusive Chairman Langmuir's letter and 
statement that this work was done for the inirposes of and under the express 
order of the Canadian commission itself and not " to accommodate a power 
company." 

You say that naturally you could not know of this evidence four months in 
advance of its presentation. Rut will you allow me to suggest that the fact as 
stated by me was true, even though this particular evidence of the fact did 
not exLst : and that by my direction and in the presence of the general manager 
of our company this fact was brought to your attention directly upon July 12? 
When you undertook to doubt the truth of the statement of the power com- 
l)anies, which, as you now recognize, was perfectly true, it was, I most re- 
spectfully submit, your duty to exhaust all sources of information befoi'o un- 
dertaking to advise the American public of that which not only was absolutely 
untrue, but was grossly unju.st to our companies. * 

In apparent justification of yoiir original error you refer to the statement 
of Chairmnn Dow before the Committee on Rivers tind Harbors on April 21, 
as published upon i>ages 168-109 of the report of the hearings before that com- 
mittee; and you add, "If you will look this up you will see he made a clear- 
cut and delinite statement which fully supported my statement." 

In answer to this invitation, I have referred to ^Ir. Dow's cited testimony, 
and I do not find that either fully or otherwise does it supi)ort your statement 
that this work was done " to accommodate a power company " or " to give a 
better chance to one of the power companies." Mr. Dow do(>s state that the 
filling in was done by the power companies, but he does not state, nor does 
he undertake to state, why the power companies did the filling in. The sting 
of your charge was not that " the filling in had been done by the power com- 
panies," which is true, and which is all that Mr. Dow said, but it was in the 
allegation that the filling in was done by the power companies "for their own 
I'urposes," which is untrue and which very tardily you recognize as untrue 
under the compulsion of Chairnnin Langmuir's letter, that the filling in was 
done for the benefit of the Canadian Park by the orders of the Canadian com- 
missioners and not for the benefit of any power company. 

I am sending a copy of this communication to .Mr. Charles M. Dow, and also 
appending the same to the revision of my brief before the Secretary of War. 
I am, faithfully, yours. 

Fkaxcis Lynuk Stetson. 



Appendix C. 

New Yohk. DvrrinJxr /, lUOii 
AV. J. Barden, 

Captain, Corps of Enfflnccra, Waxhiiigton, D'. C. 

My Dear Sik : I beg to acknowledge the rec-eipt of your favor of November 
28, transmitting the Supphnnental Report of Capt. Kutz. 

I have only to express my appreciation of the reasonableness of Capt. Kntz's 
additional conclusions, which I am happy to accept with the fallowing modifi- 
cations: 

(1) As stated at the hearing before the Secretary of War. I am willmg, 
without prejudice to our reserved right and claim of priority, and as a modus 
Vivendi, pending a treaty negotiation, to consent to the eipial division between 
the three comi)anies of "the 157.500 horsepower for which in his first report 
Capt. Kutz reconnnended that transmission permits might now issue. 

This concession is made wi'liout any doubt as to the justice of the report of 
Capt. Kutz; but because our present Canadian installation would not enable 
us now to develop or to transmit the full amount of OO.iXM) horsepower. So 
soon as we shall have comiileted our Canadian power house as now proposed, 
to the full extent of 121,(X»0 horsepower, we shall upon the ground of our 
priority expect to be permitted to transmit that full amount irresjiective of 
any claim of any other company. 



PRESERVATION OF NIAGARA FALLS. 371 

(2) While upou the hearing I concurred tliat liermils for power trausniis- 
siou, as well as for power diversion, should be preferably in terms of cubic 
feet of water rather than in terms of horsepower, I did not intend, nor do I 
intend, to concede that Ihe Onlario Power Co. lias any ground uix>n which 
it can claim special consideration ; nor did or do I intend to concede that upon 
any ground the Ontario Power Co. is entitled to take any water until after 
the full demand of the Canadian Niagara Co. has been met. 

(3) As already stated in my earlier brief I ask that at all times the Canndian 
Niagara Co. shall be authorized to supplement and to make good from its works 
the draft, which under the permit of the Secretary of War the Niagara Falls 
Power Co. shall be authorized to make on the American side to the extent that, 
for any cause, such authorized draft shall fall short of the amount authorized. 
As these two companies are substantially one, their combined draft should be 
considered as one; and so long as such combined draft does not exceed the 
aggregate authorized by the law, it would seem to )>e equitable that if necessary 
water might be taken from the Canadian Falls to the relief of the American 
Falls. 

(4) I desire to renew the prayer contained in my earlier brief, that consid- 
eration be given at present to our application for additional power, and this 
for the reason there indicated, that suc-h permission is necessary in order to 
enable us to proceed witii the completion of our power house, for which the 
wheel pit already has been dug. In tliis particular our position is analogous 
to that described by the felicitous figure used on Monday by the Secretary of 
War. We are in the position of the man who has built his house to the second 
story, and thereby is involved in the necessary expense isnd consequence of 
a roof to cover it. 

For the protection of this right to complete our power house to the full extent 
of 121,000 horsepower, we rely primarily npon our prior right to take all of the 
power necessary for our i)urposes. e\en though our juniors go dry, and, second- 
arily, if, notwithstanding our plea, our claim to priority be rejected, then upou 
a consideration of our equities in respect of the additional power to be granted, 
(ii) I ask that after decisi^m the form of permits be settled on notice. 
This communication I submit to the Secretary of War in printed copies as 
constituting my reply upon the entire subject, including Capt. Kutz's report. 
Your obedient servant, 

Francis Lynde Stetson, 
For Canadian Siugam Co. and Niagara Falls Power Co. 

Postscript, December 3, 1906. In paragraph 5 of this report Capt. Kutz ob 
serves that the Niagara Falls Power Co. now is limited to the production of 
76,000 horsepower (which as hereafter considered is electric horsepower not 
including hydraulic service), which falls short of its 102.000-horsepower re- 
quirements as stated in paragraph 4. and thus " throws a load of 20,000 horse- 
power on the plant of the Canadian Niagara Co." 

These figures may be explained as follows: 

The anKHU't of 102,000 horsepower represents the aggregate of the maximum 
use of power, both electric and hydraulic, supplied by the Niagara Falls 
Power Co. 

To this amount of maximum use the 8,600 cubic feet of water permitted 
would be barely adequate, and would allow only 70,000 electric horsepower 
available for sale, as follows : 

Hydraulic : 

Niagara Falls Waterworks feet SO 

International Paper Co do 808 

.S8S 

Electric : 

Exciters do 34.4 

Available for sale* do 7,676 

7, 710. 4 



S, 598. 4 
Francis Lynde Stetson. 



70.000 horsepower X 101 sccond-fei't^T.tiTB spcond-foet. 



.'^'72 l'Kt:SEKVATU)X OF XIAtiAHA FAIJ.S. 

TiiK rj{Fsi;i:\ A'liON of niacaka kmj.s. 

To rile KiMioi: oi' Tin- S(ii:.\rinr A.Mi.'tJc ax : 

At the lii'jid of the editorial colunnis of your i»iil»iicat ion I iiou- tli.u ii is 
(lecliUHHl that " The jm: pose of tliis journal is tc; record a'-cu>arely and in siiuiile 
terms the world's i)!-o;j;i-ess in s.jieiitific kiiowledjie and industrial aehievenient." 
Immediately following this declared ))nrpose. in yonr issue of May 27. you pub- 
lish an editorial entitled " Niagara Falls again threatened." 

The writer has resided a lifetime in i)roximity to the great Falls of Niagara. 
has witnessed the electrical power development from the beginning, is faniiliai- 
with every detail of it. and confidently asserts that the diversion of the waters 
of the Niagara Kiver for power-development purjioses has made absolutely no 
j>erceptil)le difference in the tlow of tiie river. The only difference I hat has 
been seen in the river has been caused by the changes in the din^ction of the 
wind, by ice .ianis for a few hours in the winter, and by high and low water 
conditions that are perifsdical and are common to all lakes and streams. Some- 
times Lake Ontario washes its banks and sometimes there are many yards of 
beach. In corrob<»ratiou of my statement that the power develoi)ment has made 
uo perceptible difference in the flow of the river. I bring ofhcial testimony. In 
the early sunmi«'r of 11M)S the two power comiiany plants in this city were en- 
tirely shut down for .several liours, and a test was made by Fnited States engi- 
neers to ascertain the effect upon the How of the river over the Falls. In a 
letter t*' the Engineering News of July 2, 1908. Ma.j. <"harles Keller. ('ori»s of 
Engineers. Fnited St.-iles Army, officer in chai-ge of lake survey, said that during 
the period of the shutdown " the rise shown by the gauge set by rhe lake survey 
close to the crest of the American Fall was about an inch, and was fully as 
much as anticipated."' Another test about the same time was officially rejiorted 
i>y G. Edwai'd Wilson, secretary of the .\nierican section of tb(» International 
Waterways Commission, as forty-six one-hundredths of an inch. The Burton 
law was in effect tlieii. it is in effect now. and Niagara Falls is not •■ threat- 
ened " any more now than it Mas tlien. In fact, a treaty between the Fiiited 
St.ites and (Ireat liritain has since been ratified which permits the diversion of 
20,000 cubic feet i)er second of water on the American side and .".(."..(MiO cubic feet 
per second of watei- on the Canadian side. This provision was in accordance 
with the recommendation of the International Waterw.iys Conunission. which 
thorouglily investigated the subject. The present diversion on the American 
Hide of the river is 15,000 cul)ic feet per second of wafer, so that tliere is still 
a leeway of 4.400 cubic feet per second of water under the limitations of the 
treaty. Before tlie present permits were granted under the Hurron law that 
went into effect .Tune 20. 1900. William H. 'I'aft. then Secretary of War. came 
to Niagara Falls and- gave a hearing to all iiarties interested. In gr.inting the 
power permits Srcret.-iry T;rft promulgated a lengthy opinion, in viliich he said: 

"The International Waterways Commission, a body appointed under a stat- 
ute of the United States to confer witli a siunlar body .•ii)pointed under a 
statute of Canada, to make recommendations with reference to the control and 
government of the waters of the Great Lakes and the valley of the St. Law- 
rence, have looked into the question of the amount of water which could be 
withdrawn on tlie American and the Canadian sides of the Niagara River with- 
out subst.-intial injury to tlie cataract as one of the great natural beauties of 
the world. .(Ud after a most careful examination they have reported, recognizing 
fully the n.ecessity of preserving infat-t the scenic grandeur of the Xiauara 
Falis, that it would be wise to restrict diversion to 28.600 cubic feet jier second 
on the American side of the Niagara River and to restrict the diversion on the 
Canadian side to ^0.000 cultic feet jier second." 

Later the Rritisli-Anierican treaty provided for a diversion of 20.000 cubic feet 
per second of water on the American side and ."ifi.OtX) cubic feet iier second of 
water on the Canadian side. :My infoimalion is that the present diversion is 
27,000 cul)ic feet per second of water. Your statement is that it is 34,000 cubic 
feet per second of water. In the o])inion referred to above Secretary Taft 
continued : 

"I have already said tb:ii the object of the act is to ])reserve Niagara Falls. 
It is curious, however, tliat this pnriwse as a limitation upon the granting of 
pernuts by the Secretary of War is only specifn-ally recited in reference to his 
granting permits for diversion of additional amounts of water over l.'.OOO 
cubic feet on the American side, which are to be limited to ' such amount, if 
anv, as in connection with the amount diverted from the American side, shall 



PRESERVATION OF NIAGARA EALL8. 37o 

not interfere with tlie navlf;al>le oapacity of said river or its integrity and 
proper volume as a bonndai-y stream or tlie scenic grandenr of Niagsira Falls.' 
This peculiarity in the act is sijiniticant of the tentative opinion of Congress 
that 35.600 cubic feet of water might be diverted on the American side and 
160.000 electrical horsepower mi.uht be transmitted from the Canadian side 
without substantial diminution of the s?enic grandeur of the Falls." And then 
Secretary Taft gave his decision that "'acting, however, upon the same evidence 
which Congress had, and upon the additional statement made to me at the 
hearing by Dr. John M. Clark, State geologist of New York, who seeius to have 
been one of those engaged from the beginning in the whole movement for' the 
preservation of Niagara, and who b.as given close scientific at'ention to the 
matter, T have reached the conclusion that with a diversion of 15,600 cubic feet 
on the American side and the transmission of 160,000 horsepower from the 
Canadian sifle the scenic grandeur of the Falls will not be affected substantially 
or perceptibly to the eye." 

That is the diversion that is taking place to-day. It was the judgment of 
the International Waterways Commission and the men who frame<l the British- 
American treaty that an even greater diversion would not be injurious. It 
was the opinion of the Congress of the Ignited States and Secretary Taft that 
the present diversion would not be injurious. A test made by engineers of the 
United States Lake Survey Corps proved that the diversion is not perceptible, 
and we who see Niagara Kiver daily say that no effect on its flow is seen as the 
result of power developni.ent. There is now being deveIoi>ed from the Falls of 
Niagara 350,000 electrical Horsepower. Their total power-iu-oducing capacity 
is estimated at from 5.000.000 to 7.000.000 horse. Do you think the cataracts 
as a spectacle are seriously threatened? 

C. T. Williams, 

Cifj/ Indufifrial Agent. 

Niagara Falls, N. Y. 



.TrxF 27. 1911. 
The Speaker of thk IIoukk of IIepresentatives, 

Washiiifiio)!. D. V. 

Sir: I have the honor to invite attention to the situation with re.sijecr to the 
legislation for the protection of Niagara Falls. The act of June 29, 1908 (the 
Burton Act), as extended by j<iint resolution of March 3. 1909, by which the 
supervision of the operations of the poAver companies at Niagara is placed in 
the hands of the Secretary of War. will expire by limitation on June 29. 1911. 
two days hence, and unless some action is taken by Congress tlie authority of 
the War Department in the matter will then cease, and the existing permits 
issued by the Secretary of War. in ••onformity with the terms of the act, will 
become void. 

The treaty of May 13, 1910. with Canada fixes a maximum limit for permis- 
sible diversions of water at Niagara, but does not vest in any person or com- 
mission the power to control such diversions nor place upon any person or 
commission the duty of seeing that these diversions do not exceed the limits 
fixed by the treaty. The importance of early action in the matter by Congress 
is therefore apparent if the dangers of a partial or complete lapse of the super- 
vision now exercised by the War Department are to be avoided. 

I therefore urgently recommend that the matter be laid before the House, and 
that the importance of the early passage of Senate joint re.solntion 3 or of a 
substitute acceptable to the House be emphasized. 

Very respectfully. H. L. Stimson, 

Secretary of War. 



WHAT THE AMERICAN CIVIC ASSOCIATION IS AND DOES. 

The American Civic Association for the past eight years has been a recog- 
nized national organization for the making of better living conditions for all 
America, especially in the improvement of the physical and structural growth of 
conununities. Its purpose is briefly stated as being " the cultivation of higher 
ideals of civic life and beauty in America, the promotion of city, town, and 
neighborhood improvement, the preservation and development of landscape and 
the advancement of outdoor art." 

The gener.il offices of the American Civic Association were established in 
Washington in Janu.iry. 1910, and from that citv there has been conducted a 



374 PRESERVATION OF IS^TAGARA FALLS. 

vi}^ox"Ous iJi'iJiKij^aiidu by corre-siiuiuleuce and distribution of priuted literature 
extending to all parts of the United States and Canada. The association main- 
tains a department for the rental of lantern slides, which may be used by local 
speakers, and which are descriptive of the changes that may be effected in 
towns and cities. 

These are particularly valuable because they illustrate, in picture form, con- 
ditions "before and after" in scores of coumumities where definite work has 
Ijeen done. Under the patronage of the association sectional meetings have been 
held in various sections and during the year to come it is proposed to arrange 
several imi)ortant territorial meetings where representatives from a group of 
vStates may be brought together to hear the practical talks given by experi- 
enced men on many phases of the work of the association. 

The American Civic Association is supported by a membcrshii) of individuals 
and alfiliated societies, the annual fee being $5, with special classes of sustain- 
ing members at $10, life members at .$50. and contributing members at larger 
sums. 

The principal othcers of the association are J. Horace McFarland. of Harris- 
burg, Pa., president; Clinton Rogers Woodruff, of Philadelphia, first vice presi- 
dent; William 1>. Howlaud, of New York, treasurer; and Richard P.. Watrous, 
of Washington, secretary. These are assisted by live vice presidents — George 
B. Dealey, of Dallas, Tex.; Dr. John Wesley Hil'l. of New York; Mrs. Edward 
W. Diddle, of Carlisle, Pa. ; George W. Marstou, of San Diego, Cal. ; and J. 
lA)ckie Wilson, of Toronto, Canada. In addition there is a general executive 
board made uji of IS prominent men and women from various cities all over the 
country. 

The scope of t)ie association is not limited. It stands for better living condi- 
tions, and that takes in almost everything. It stands for clean streets and 
solicits the aid of every citizen; it advocates germ-free drinking water, and 
is doing what it can to educate the public to see that economy and health are 
i»()th on the side of good water; it espou.^es underground wires for electric lines, 
and is striving to impress the public with the importance of such a program ; it 
believes in playgrounds for the children and parks for grown-ups, and is lend- 
ing aid to every agency that would bring them about; it believes water fronts 
free from filth are essential to public health, and therefore advocates adequate 
systems of sewage. I'ublic-comfort stations, garden schools for children, group- 
ing of public buildings, care of the trees and planting of new ones — these are 
some of the planks in the platform of the association. And it has more effective 
means of campaigning for the public good than are usually at the disposal of 
uplift workers. Its members are enthusiastic believers in the promotion of 
the jjublic welfare, and are moved by humanitarian instincts; it has hundreds of 
afliliated organizations which work to further its purposes; it has an efficient 
juiblicity system for commanding the public attention aiid a system of dis- 
tributing its literature where it will count. Thus equipped, it expects to do its 
part toward making the ensuing year notable for the itromotion of the welfare of 
all classes and conditions of society. 



IN THE ( iRcriT (M)rirr of the inited states within and for 

THE district OF COLORADO, SITTING AT PIEP.LO. 

The Cascade Town Company, complainant, r. The Empire Wat<'r and Power 
Company et al.. defendants. In equity. No. 418. 

Leander A. Rigger, comidainant. r. The Empire Water and Power Company 
et al.. defendants. In equity. No. 353. 

I. ruV. F.\.CTS. 

Complainant. Tlie Cascade Town Co.. owns several hundred acres of land up 
T.'te Pass, about 11 unles from Cololrado Si)rings. Fountain Creek Hows through 
Ute in an easterly direction, and as it i^asses the lands of the complainant 
company its waters are augmented by those of Cascade Creek — short in length 
of flow but jirecipitous — which eome down from the watershed on the north- 
erly slope of Pike's Peak to the westerly. 

The said complainant company and its predecessors in title have owned these 
lands for many years, and they liegan improving them as a summer resort more 



PRESERVATION OF NIAGARA FALLS, 375 

than 20 years ago aiul have maintained them as such ever since and have not 
sought to utilize them otherwise. For that purpose they have constructed 
hotels there and built cottages, roads, and trails on its lands extending up 
through Cascade Canyon, thnnigli which the stream of tli<» same name flows, 
and on beyond into the moimtains. hiid out. dedicated to the public, and im- 
proved a small park in said canyon, made a lake and fountain, built a pavilion 
or auditorium for conventions, and otherwise improved its grounds, thereby 
adding to the attractions of the place as left by nature. The complainant com- 
pany and its predeces.sors are not, and were not, numicipal corporations but 
business ventures created for the puriwse of maintaining their i)ro])erty as a 
resort for tourists during the summer rseason. The place is known as Cascade. 
The Midland Railway, which traverses Ute Pass, has a station there. The com- 
plainant company has sold some of its property to persons who desired to im- 
prove the same as sunmier homes, and the complainant Rigger has spent about 
$15,000 in improving his lK)me on land bought from the company, lying on both 
sides of Cascade Creek just below the canyon. The company obtains an in- 
come from those who stop at its hotels and enjoy other accommodations which 
it offers. It has spent a large amount of money in improvements. The roads 
and trails up Cascade Canyon and on into the mountains were constructed at 
an expense of fifteen or twenty thousand dollars. It also built a small water- 
works to supply the cottages and its hotels. It advertises the place for the 
purpose of inducing the public to go there, and for the past quarter of a cen- 
tury it has been visited annually by twelve or fifteen thousand people. It has 
a permanent population of 50 or 60 i)eople. 

Among other attractions held out in its advertisements are Cascade Canyon 
and the falls of Cascade Creek through the canyon. The canyon and falls are 
rare in beauty and constitute the chief attraction. Without them the place 
would not be much unlike any other part of Ute Pass. The canyon is about 
three-quarters of a mile long and very deep; its floor and sides are covered 
with an exceptionally luxuriant growth of trees, shrubbery, and tlowers. This 
exceptional vegetation is produced by the flow of Cascade Creek through the 
canyon and the mist and spray from its falls. Some of these falls are as 
much as 30 feet in height, but the difference in elevation between the foot 
and the head of the canyon is so great that the falls are almost continuous 
from the head down. The volume of water is the greatest during the summer 
.season. It comes from the melting snows and on the north slope of I'ikes Peak. 
But the flow is fairly even, due to the fact that the upiier stretches of the water- 
shed are composed of disintegrated granite, into which the water first sinks 
and gradually percolates until gathered into the bed of the stream. The 
volume is said to be equivalent to a stream about 8 feet wide and to 8 inches 
in depth. The vegetation in the canyon and up its sides consists, in part, of 
pine, si)ruce, tir, balsam, aspen, black birch. Jai)anese maple, thimbleberry, 
wild cherry, chokecherry. and aster ct)lumbine, larkspm-. wild rose, the red 
raspberry, wild gooseberry, ferns, mosses, and many other kinds of trees, shrubs, 
and flowers. The stream is annually stocked with trout. The birds which are 
found in the canyon — some grouse, a few squirrels, and perhaps a few wild 
animals there — are i)rotected by the complainant company. The complainant 
called a florist of 25 years' experience and a landscape gardener of 25 years' 
(experience as witnesses. They tell us thiit the native flora of th(> countx'y is 
quite extensive in Cascade Canyon: that the evergreen features are perfect; 
that there are three or four varieties of pines, three of junijier. and three of 
spruce, probably 25 vai'ieties of native perennials, and several varieties of moss 
growth and a large variety of wild flowers and flowering shrul>s: that the 
waterfalls create a spray .-md mist which, together with the undergi'ound 
seepage down the sides of the canyon, produce this very luxuriant growth, 
there being at least 200 varieties of vegetation; and that it is far superior in 
th:it respect to any other canyon in the neighborhood, and exceptional. The 
seepage and the mist and spray give life to the foliage. 

The defendant was incorj)orated for the purpose, among other things, of 
generating electricity by water power, and to dispose of the same as a com- 
modity: and to exwute that purpose it sent its agents on to the watershed of 
Pike's Peak, above the head of Cascade Canyon, and located a reservoir site 
and did some acts, at small expense, looking to the execution of that purpose, 
whereby it intended an<l expected to im])ound the waters in such reservoir and 
later conduct it hi pijies down the mountain to and beyond the i)roperty of the 
complainant company. And thereupon complainants filed their several bills 



376 PRESERVATION OF >vIA(iAHA FALLS. 

asking that tlie defeudant be enjoined from so doing as a threatened injury tt) 
their vestetl rights. 

It is found as a fact that if the defendant do impound the waters of Cascade 
Creek above the falls and conduct it therefrom in pipe as aforesaid, the falls 
in the canyon and the vegetation on its floor and sides will be lar,gely if not 
wholly destroyed and the canyon hence become a dry gulch, and that all the 
waters flowing in sjiid stream are needed by complainant company, and are 
necessary for the aforesaid purpose to whicli they have been ai»plie(l 1)y said 
complainant. 

II. THE LAW. 

1. The first contention of both complainants is that the Government, while It 
was the owner of the lands on which the canyon and the falls are situated, had 
riparian right in the stream and that those rights were conveyed by patent 
from it, through mesne conveyances, to the complainants. 

This contention can not be accepted. There are no riparian rights in Colo- 
I'ado as against a valid appropriation of water. 

In Sternberger r. Eaton Co. (45 Colo., 401. 404). it is said: 

"The doctrine in this State that the common-law rule of continuous flow 
of natural streams is abolishc^l is so ttrmly established by our constitnticm, the 
statutes of the Territory and the State, and by many decisions of this court, 
that we decline to reopen or reconsider it, however interesting discussion 
thereof might otherwise be, and notwithstanding its importiince." 

And again, page 403: 

" The Supreme Court of the United States in several cases has approved and 
indicated its satisfaction with the decisions of the State courts which hold that 
the common-law doctrine has been abolished, and has s;iid th.it each State, 
without interference by the FKleral courts, may for itself, and as between rival 
individual claimants determine which doctrine shall be therein enforced." 

In Coflin );. Left Hand Ditch Co. (6 Colo.. 443. 440). it is said : 

" It is contended b.v counsel for appellants that the conmion-law principles 
of riparian in-oprietorship prevailed in Colorado until 1870, and that the doc- 
trine of iiriorit.T of right to water b.v priority of aiiiiojiriation thereof was first 
recognized and ado]itetl in the constitution. But we think the latter doctrine 
has existed from the date of the earliest appropriations of water within the 
boundaries of the Slate. The climate is dry. and the soil, when moistened only 
by the usual rainfall, is arid and unproductive; except in a few favored sec- 
tions, artificial irrigation for agriculture is an absolute necessity. Water in 
the various sti'eanis thus acquires a value unknown in moister climates. In- 
.<!tead of being a mere incident to the soil it rises when approi)riated to the 
dignity of a distinct usufructuary estate, or right of proi»ert.v. It has always 
been the policy of the naticuial as well as the Territorial and State govern- 
ments to encourage the diversion and use of water in this country for agri- 
culture, and vast expenditure of time and money ha^e been made in re<'laiming 
and fertilizin.g b.v irrigation ])ortions of our unproductive territory. Houses 
have been built and i)ermanent imi>rovements made; the soil has been culti- 
vated and thousands of acres have been renden^l immen.sely valuable, with the 
understanding that appropriations of water would be protected. Deny the 
<|octrine of priority or su|)eriorit.v of right by jiriority of appropriation and a 
great part of the value of all this iiropert.v is at once destroyed. 

"The right to water in this country by priority of appropriati(ui thereof we 
think is, and has always been, the duty of the National and State governments 
to protect. The right itself, and the obligation to i)r()tect it. existed ]irior to 
legislation on the sul>jtHt of irrigation. It is entitliKl to ]irot(Htion as well after 
patent to a third party of the land over which the natural stream flows as 
when such land is a part of the public domain; and it is immaterial whether 
or not it be mentioned in the patent and expressly exeluded from ilie grant. 

"The act of Congress i^rotecting in patents such right in water apiiropriated, 
when recognized b.v local customs and laws, was rather a voluntary recognition 
of a preexisting right of possession, constituting a valid claim to its continued 
use, than the establishment of a new one. ( Kroder c. Notoma W. & ^I. Co- 
ll Otto, 274.) 

" We conclude, then, that the common-law doctrine giving the riparian owner 
a right to the flow of water in its natural chnnnel upon and over his lands, 
even though he makes no beneficial use thereof, is inapplicable to Colorado. 
Imperative necessity, unknown to the countries which gave it birth, comi)els 
the recognition of another doctrine in conflict therewith. And we hold that. 



PRESEKVATION OF NIAGAEA FAI^LS. 377 

in the absence of express statutes to the contrary, the first approitriator of 
water from a natural stream for a beneficial pnrj)Ose has, with the qualifica- 
tions contained in the Constitution, a prior right thereto to the extent of such 
appropriation." 

Congress, as early as 1SG6, recognized the necessity of the abolition of the 
common-law doctrine of riparian rights in the arid States. Speaking of the 
act of July 20, 18(J(J, the Supreme ,Court, in United States r. l{io Grande Irri- 
gation Co. (174 U.'S., OyO, 740), said: 

"The effect of this statute was to recognize, so far as the United States 
are concerned, the validity of the local customs, laws, and decisions of cdiirts 
in respect to the appropriation of water." 

And again, at page 702: 

" AVhile tills is undoubted (the rule of the oonnnon law as to riparian rights), 
and the rule obtains lu those States in the Union which have simply adopted 
the conunon law, it is also true that as to every stream within its domain a 
State may change this common-law rule and permit tlie appropriation of tlie 
flowing waters for such purposes as it deems wise." 

In Gutierres r. Albuquerque Uand Co. (188 U. S., 545, 552) it is said: 

" We think, in a iew of the legislation of Congress on the subject of the 
appropriation of water on the public domain, particularly referred to in the 
opinion of this court in United States v. Rio Grande Irrigation Co. (174 U. S., 
090, 704-700), the objection is devoid of merit. As stated in the opinion just 
referred to, by the act of .July 20, 1800 (14 Stat., 253). Congress recognized as 
respects the public domain, so far as the United States are concerned, the 
validity of the local custctms. law, and decisions of courts in respect to the 
appropriation of water." 

Also Clark v. Nash (195 U. S., 301, 370) : 

"The rights of a riparian owner in and to Uie use of tlie w;iter fiowing by 
his land are not the same in the arid and mountainous States of the West 
that they are in the States of the East. These rights have been altered by 
many of the AVestern States, by their constitution and laws, because of the 
totally ditferent circumstances in which their inhabitants are placed, from 
those that exist in the States of the East, and such alterations have been made 
for the very purpose of thereby contributing to the growth and prosperity of 
those States arising from mining and the cultivation of an otherwise valueless 
soil by means of irrigation. This court must recognize tlie difference of climate 
and soil which rendered necessary these different laws in the States so situated." 

This question had direct consideration by the circuit court of appeals for 
this circuit in the case of Snyder i*. Colorado Gold Dredging Co., opinion in 
which was tiled August 4, 1910. In that case it is said: 

" The common-law doctrine in respect of the rights of riparian proprietors 
in the waters of natural streams never lias obtained in Colorado. From the 
earliest times in that jurisdiction the local customs, laws, and decisions of 
courts have united in rejecting that doctrine and in adopting a different one 
which regards the waters of all natural streams as subject t() appropriation and 
diversion for beneficial uses, and treats priority of appropriation and con- 
tinued beneficial use as giving the prior and superior right. ( Yunker r. Nichols, 
1 Colo., 551 ; Coffin ?;. I>eft Hand Ditch Co., 6 Colo.. 443, 447 : Platte Water Co. 
V. Northern Colorado Irrigation Co., 12 Colo., 525, 531 ; Crippen v. White, 28 
Colo., 296.) In so choosing l>etween these two inconsistent doctrines Clorado 
acted within the limits of her authority, first as a Territory and then as a State, 
and her choice was recognized and sanctioned by Congress, so far as the public 
lands of the United States were concerned." 

And again : 

" It needs only to be added that, by the settled rule of decision in the Supreme 
Court of the United States, conveyances by the United States of public lands 
on nonnavigable streams and lakes, when it is not provided otherwise, are to 
be constructed and have effect according to the law of the State in which the 
lands are situate, so far as the risrhts and incidents of riparian proprietorship 
are concerned. (Hardin v. Jordan, 140 U. S., 370, 384, 402; Hardin v. Sheed, 
190 U. S., 508, 519; Whittaker v. McBride, 197 U. S., 510; Harrison t'. Fife, 
78 C. C. A. 447, 148 Fed., 781, 783.) Here it is not provided otherwise, either 
by statute or by the patent, and, as has been seen, the local law does not recog- 
idze a conveyance of the land as carrying any right to the unappropriated 
waters of the stream." 

It is therefore believed that the patent from the Government did not pass, 
and the patentee did not take riparian rights to the waters in question, but 



iation 



378 PKESEKVA'ifON OF NFAGAHA FALLS. 

tlint said lands aro liold by the coniplaiiiants puhject to the law of api^-opria 
of waters as eslal)lished in this State. And inasnmch as there is no testimony 
showing any right to the waters of Cascade Creelc in the complainant Rigger, 
other than that of a rii)arian owner, the finding of the court must he against 
him. and his case dismissed, if the alleged threatene<l acts would constitute 
a valid appropriation. 

2. If the defendant were p<'rmitte(l to impound and pipe, the waters of Cas- 
cade Creek for the purpose of generating electricity to be sold by it as a com- 
modity, as charged in the bill it was threatening to d<j and admitted in the 
answer and shown l)y the ])roof it intended to do. such acts would liave con- 
stituted a valid apiirojjriation of said waters mider the constitution and laws 
of the State of Colorado as they have been constitutetl by the court of last 
resort in this State. (Lamliorn r. Bell, is Colo.. :;4fi: Sternbercer r. Seaton N. 
Col. 4.J Colo.. 401 : See also. Schwab v. Ream, S(> Fetl., 41. 43.) 

3. Does the testimony show an api)ropiiation of the waters of Cascade Creek 
by the com))l«inant comjjany or its predecessors in title along the falls as they 
flow through Cascade Canyon? 

The people of Colorado dedicated to the public all unapproi)r!ated waters of 
every natural stream within its borders and made them subject to appropria- 
tion as private iirojierty. (Const, of Colo., art. 16, sees. ,"> and 0.) 

Section (» reads, in itart, as foll()ws: 

"The right to divert tlie unai)propriated waters of any natural stream to 
beueticial uses shall lU'ver be denied." 

lUit neUher the manner of malcing siicli appropriation nor the acts necessary 
to be done to constitute an api)roprialion has been definitely fixed by the con- 
stitution, by the statute.^, or by the decisions of he courts. Nor has the term 
" beneficial uses." as usetl in section (i. supra, been definitely fixed and limited 
in its meaning. I can not better express my own views as to the meaning of 
thar phrase. ai)plicable to the facts here, than to quote a ])art of the brief of 
the learned solicitor for comi)lainant : 

" The courts have not defined, because they as yet are unable to define, the 
exact boundaries of the territory known as 'Iteneficial use."" 

Mr. Kinney, in his work on Irrigation, says: 

" Tl;e puri'ose contemi)]ated for the. use of the water may be irrigation for 
agricultural or horticultural purposes, mining, milling, manufacturing, domestic, 
or an.v other ptirpose for which water is ncn^ded to supi)ly the natural and arti- 
ficial wants of man provided to be a beneficial use." (Sec. 150 ) 

Pomeroy says (sec. 47) : 

" The purpose may be mining, milling, manufacturing, irriarating. .•igrictil- 
tural, liorticultural. domestic, or otherwise: but there must be some actual, 
positive, beneficial purjiose, existing at the time or contemplated in the future, 
as the subject for which the water is to be utilized. 

"The public health 's a beneficial use. and for that imrpose, auiong others, a 
city may condemn streauis of water. The water, when so obtained, may be 
used, and is used, in any manner that will promote the public health: it is 
used for sprinkling the streets, washing the pavements, and flushing the sewers. 

"Rest and recreation is a beneficial use, and for that purpose water is used 
to make beautiful lawns, shady avenues, attractive homes, and public parks, 
with fountains, lakelets, and streams, and artificial .scenic beauty. 

" Cities condemn water and use water for the foregoing i)urposes. No one 
questions but that public health, rest, and. recreation is a domestic use as 
well as a beneficial use. No one, we may add, questions the right to these 
uses. 

" The law inside of a city is not different from the law outside of the city. 
In one sense there is no commercial value to fountains and parks; they do not 
bring in a revenue, but they are vastly beneficial to the public health, rest, and 
recreation, and such fact is recognized the world over, and there can be no 
question but that water applied to their maintenance and creation is a 'bene- 
ficial use.' 

" We say that the creation of a summer resort is a beneficial use Is it no 
benefit to the public to si»end money in making a beautiful, jtlace in nature 
visible and enjoyable? Is it not in line with public health, rest, and recrea- 
tion? If a person takes a stream and, after putting in waterfalls, j)onds. 
bridges, walls, shrubbery, and blnegrass sod, works it into a beautiful home, 
that is a beneficial use. It is beneficial to the weary, ailing, and feeble 
that they can have the wild beauties of nature placed at their convenient dis- 
posal, is a piece of canvas valuable only for a tent fly but worthless as a 



PBESERVATTON OF NIAGARA FALLvS. 379 

painting? Is a block of stone iKHieticially used when put intv> the walls of a 
daui and not benefit-la lly used when carved into a piece of statuary? Is the 
test dollais. or has beauty of scenery, rest, recreation, health, enjoyment sonie- 
thinir to do with it? Is there no beneficial use except that whi<'h is purely 
commercial? 

•' Tt would seem thai )iarks and playf;:rt>nnds .md blue grass are benetiis and 
their uses beneficial although there is net i«rotit derived from them: if not. then 
the conreution of the defendant corporation must he maintainetl that nothing 
hut money-making schemes are benehcial. The world delights in scenic beauty, 
but iimst scenic beauty dis:tpi)ear because it has no api)raised cash value? If 
this defend.int I'orporafion takes rlie water out of Cascade Canyon, it can take 
the wafer out of tlie Seven Falls arid Cheyenne Canyon, and Glen Eyrie, and 
the beautiful parks, and homes and sunnner resorts of the State. We feel 
co'upelled to say that there are other I.eneticial uses of the f:ill of water (ban tlie 
nioie production of commodities in comietilioii with others now existing. \Yhen 
the defendant company says the c(.n!i)lainanls .ire putting tlie fall of tiie water 
to no beneficial use, it means that the i-omplainants are not ruining the beautiful 
scenery for casli." 

It is therefore held that tlie maintenance of the vegetation in Cascade Canyon 
for the purposes to which it has been devoted by tlie complainant, by the flow 
and seei)age. and mist and spray of the stream and its falls as it passes tlirough 
the canyon, is a beneficial use of such waters within ihe meaning of said section 
6, article IG of the constitution, that the complainant intended to use tli« 
waters of Casc.-ide Creek f<»r tliat puriiose and has so usfd them for many 
years and tliereby appropriated the same. The complainant is not required to 
construct ditches or artificial ways through wliich the water might be taken 
from the stream in order tliat it might appropriate the same. The only indis- 
pensable requirements are that the aitproiii iatoi-, in order to constitute a valid 
appropriation, first, must intend to use tlie waters for a beneficial use, and, 
second, actually apply tliem to a beneficial use. There 's expres.s statutory 
recognition of utilization of lands from natural overflow as one means of ap- 
propriation, as ill the flooding of meadows by natural overflow without the use 
of any artificial means wliatever. (Rev. Stats, of Colo.. 1908, sec. 3105; Humph- 
revs Co. r. Frank. 46 Colo.. 524; Broad Run Inv. Co. r. Deuel & Snyder Imji. 
Co., 108 Pac. (Colo.), 755.) 

The supreme court of this State, in considering the means necessary to con- 
stitute appropriation, in Thomas r. Guiraud (6 Colo., 530, 533). said: 

" We do not agree witli counsel for plaintiff in error in tlieir i)osition, as we 
understand it that the appropriation of water by Guiraud in 1862 was not valid 
or permanent because he constructed no ditches. Some of the witnesses testify 
that he did construct ditches, but it is unnecessary for us to weigh the testi- 
mony and determine tlie preponderance thereof upon this question. If a dam 
or contrivance of any kind will suffer to turn water from tlie stream and 
moisten the land sought to be cultivated, it is sufficient tliough no ditch is 
iieeded or constructed. Or if land be rendered itroductive by tlie natural over- 
flow of tlie water thereon, without the aid of any appliau,ces whatever, the culti- 
vation of such land by means of the water so naturall.y moistening the same is 
a sufficient appropriation of such water, or so much thereof as is reasonably 
necessary for such use. The true test of appropriation of water is the success- 
ful application thereof to the beneficial use designed; and the method of divert- 
ing or carrying the same or making such application is immaterial." 

And again, considering the same question, that court, in Larimer Co. R. Co. v. 
People ex rel. (8 Colo,, 614, at 616), declares: 

" It is claimed rhfit when the constitution recognizes the right to appro- 
l)riate water by diversion, it excludes the appropriation thereof in anj' other 
m.'inner. Further, that the word 'divert' means to take or carrj'^ it away from 
the bed or channel of the stream : that therefore respondent's act of utilizing 
a natural reservoir in the bed of the stream and thus storing surplus water for 
future use, not being a diversion in the sense of the constitutional provision 
cited, is in conflict therewith. We are not prepared to concede the correctness 
of counsel's position. It is our opinion that the above is not tlie most natural 
and reasonable view to adopt concerning the meaning of the constitution. The 
word '' divert ' must be interpreted in connection with the word ' appropria- 
tion ' and with other language used in the remaining sections of that instrument 
referring to the subject of irrigation. We think there may be a constitutional 
appropriation of water without its being at the instant taken from the bed of 
the stream. This court has held that ' the true test of the appropriation of 



380 PRESERVATiox OF :niagaka falls. 

water is iht- miccesslul appliiatiun tliere<»f to the beneficial use designed, and 
llie inetliod of diverting or carrying the same or making such application is 
immaterial.' ■' (Thomas v. Guiraud, 6 Colo., 530.) 

See also Fort .Morgan L. & C. Co. v. South Platter Ditch Co., lli Colo.. 1, 5. 

In Offield 0. Ish, 57 Pac. (Wash.), 800, it is said: 

" The right to use the water is the essence of appropriation. The means by 
which it is done are incidental.'* 

See also McCall v. Porter (70 Pac. (9re.), 820, 822). 

It therefore appears that the waters of Cascade Creek, which the defendant 
threatens to inipound and carry away in pijies. has already been appropriated 
by the complainant, the Cascade Town Co., for beneficial uses, and that it has 
a vested property right therein which the defendant's contemplated acts, if 
executed, will destroy. The complainant compiiny may have a decree as prayed, 
with costs. The bill of complainant. Bigger, will be dismissed, with costs to the 
defendant against him. 



PrEBLO, Colo. 



District Judge. 



f'lVloirrani.] 

Feuisuary 17, 1911. 
We respectfully urge that you use every ellort to secure the adoption of 
Senate joint resolution 143 extending the Burton Act for the preservation of 
Niagara Kiver. The Burton Act was carefully, framed to recognize and protect 
every interest Iben existing to the full extent of all development then projected. 
To maintain the status can inflict no possible harm upon existing enterprises. 
To change it as ])ropose<l by the Alexander bill, will quickly produce maximum 
Canadian development by permitting the full utilization in the United States of 
the power generated in Canada against the spirit of the treaty and to the great 
detriment of Niagara Falls. We earnestly lu'ge that no further hearings be 
granted but that the resolution be at once pressed for passage. Public senti- 
ment throughout the entire country has hitherto been overwhelmingly expressed 
to Congress in support of the Burton Act. • 

The Merchants' Assocfation of New York. 



The J. L. Hudson Co.. 

Detroit, Mich.. Maii li. lUII. 

Mr. RlCHAKli B. WATROtJS. 

Secretary American Civic Association, Washington, D. C. 

My Dear Mr. WATKots: T have yours 5th and have written to each jneniber 
of the Senate Conmiittee on Foreign Relations except Mr. Burton, as follows: 

" I am exceoflingly interested in Niagara Falls. For 40 years I have been in 
the habit of going there. I have never seen anything that compares with the 
Falls in grandeur, and I liave been utterly opi)osed to divertinir the waters from 
their natural course. 

" r think we made a mistake in giving the power com[)anies .-iny rights there 
at all. They now use 34.000 cubic feet per second and want 5(5,000. T feel very 
earnestly that their request should be denied. The enormous amount of water 
that went over the Falls before any of it was diverted was none too much, and 
now in many places the decrease is noticeable. 

" I hope your committee will report the Burton bill out favorably, and that 
the Senate will approve of the committee's findings. I think the financial 
advantage of any man or any set of men should not be considered at all in 
connection with such a world wonder as Niagara Falls is. 

" I hope you think as I do about it. and that you will support the Burton bill." 

To Mr. Burton I have written : 

" T am very nmch interested in Niagara Falls and have written to each mem- 
ber of the Senate Committee on Foreign Relations as follows: 'Can T do any- 
thing further to help you in this matter? ' " 

With kind regards, I am, 

Yours, verv truly, ' J. L. Hudson. 



PKESERVATIOJST OF NIAGARA FALLS. 381 

ERIE AND OXTAKU) SAMTAKY CANAL COMPANY— PROPOSED BILL 

FOR CONGRESS. 

A lilLJ. To siivv effect to the treaty between tin- l"Dite(i States and Great Britain. 

AVhereas it is stipuhitetl in Article V of a treaty between the United States 
and Great Britain, signed January eleventh, nineteen hundred and nine, com- 
monly known as the waterways treaty, that the United States may authorize 
and permit the diversion within the State of New York of the waters of the 
Niagara River above the Falls for power pui'poses, not exceeding in the aggre- 
gate a daily diversion at the rate of twenty thousand cubic feet per second, 
providcil the level of Lake Erie and the tlow of the Niagara River shall not be 
appiHX'iably lowered : and 

Whereas the prohibitions of Article V do not apply to the diversion of water 
for sanitary and domestic inirpcjses. and for the service of canals for the pur- 
pose of navigation ; and 

Whereas it is stipulated in Article IV of said treaty that the boimdary waters 
shall not be polluted on either side, to the injury of health or property on the 
other ; and 

Whei'eas the cities bordering upon the Niagara River and situate in the dis- 
trict contiguous thereto are subjected to epidemics of typhoid fever caused by 
the polluted water taken from Niagara River, and considerations of public 
health demand the abatement of these dangers without delay; and 

Whereas the Erie and Ontario Sanitary Canal Company has been organized 
under the laws of the State of New York to construct, without State or J'ederal 
aid, it canal between Lake Erie and Lake Ontario, beginning at a point at or 
near Smokes Creek, south of the city of Buffalo on Lake Erie, and thence to 
the mouth of Eighteen Mile Creek on Lake Ontario, a distance of fifty miles, 
more (ir less; and 

Whereas it is hereinafter provided that said canal shall be used free of cost 
by the cities of Lackawanna, Buffalo, Tonawanda, North Tonawanda, Niagara 
Falls. Lockport. and all other municipalities and communities situate upon the 
Niagara frontier, to carry off all the sewage and the sewage-polluted storm 
waters now flowing from said towns, cities, and municipalities into Lake Erie 
and rlie Niagara River, polluting the water thereof, to the great injury to the 
health of the persons living along the said Niagara frontier; and 

Whereas the said canal will be of sufficient depth and width to enable boats, 
barges, and other water craft of large tonnage to navigate the same from its 
beginning on I^ake Erie to a point intercepting the Erie Canal at or near the 
city of I^ockport, in the State of New York, thereby increasing the efficiency and 
the value to the public of said Erie Canal ; and 

Whereas the level of Lake Erie will not be lowered by the building of said 
cauiil so as to interfere with or affect its navigability; and the waters flowing 
within the Niagara River, now under the control of the War Department, shall 
not be diverted so as to affect the beauty and grandeur of the volume thereof 
flowing over Niagara Falls: Therefore, to carry out consei'vation of health and 
) lower. 

lie if enacted hy the Senate and House of Representatives of the United States 
iif A)neriea in Conf/ress a-ssrmJjJed — 

That the Erie and Ontario Sanitary Canal Company, a corporation organized 
tuider the laws of the State of New Y'ork, be, and the same is hereby, authorized 
to take six thoustind culiic feet of water per second from I/ike Erie and Ni;igara 
River for sanitary purposes and canal navigation and power, four thousand 
four hun<lred cubic feet thereof being the remaining part miuswl of the twenty 
thousand cubic feet allowe<I for power on the American side under said treaty, 
and one thousand six hundred cubic feet thereof being an allowance imder 
said treaty especially for sanitation and navigation, which volume of water 
shall be taken through three channels, designated as Buffalo River, Smokes 
Creek, and Black Rock Harbor. 

Si:t. 2. That the company within two years after the passage of this act shall 
begin the construction of the aforesaid canal without seeking from State or 
Nation other aid than that afforded by such cooperation as may properly be 
effected between Federal and State authorities; and the said company shall 
thereafter with due diligence prosecute the work to completion. 

Si:c. ;;. That in consideration of the aforesaid grant said comjiany shall give 
to the cities of Lackawanna, Buffalo. Tontiwanda. North Tonawanda. Niagara 
Falls, Lockport. and all other municipalities, public and private coriwrations, 
28305—12 25 



382 PKESERYATIOX OF NIAGARA FALLS. 

and individuals situate or Jiving in what is known as the Niagara frontier the 
free use and iH-ipelual riiudit to use the said canal for sewage-disposal purposes, 
and for the carrying off of flood waters caused by storms. 

Sec. 4. That in consideration of the facilities which it will afford to the com- 
munities, municipalities, corporations, and individuals enumerated iu section 
three of this act the comitany shall have and forever enjoy the right to and 
possession of all the water power which it is possible to develop from the 
volume of water which this act permits it to withdraw from Lake Erie and 
cause to flow through its proposed channels into Lake Ontario. 

Sec. 5. That the company shall have the right, when Buffalo River shall have 
been sufficiently deepened and enlarged to a junction with the proposed canal, 
to make a pror)er connection of said river with said canal, and thereafter cause 
the waters of Lake Erie to flow through said Buffalo River into the said canal. 

And further, that the said company may make such changes and improve- 
ments in Smokes Creek, Ellicott Creek, and other streams in Erie and Niagara 
Counties as will permit water to enter the said streams from Lake Erie, and 
through them into the canal of the said company, and through the same into 
Lake Ontario. 

And further, that the said company may build and maintain at the mouths 
of Smokes Creek and Eighteen Mile Creek such protecting piers and docks 
as may be necessary to carry out the purposes and operations of the company ; 
all of which construction affecting navigation shall be done under the direction 
of the War Department. 

Sec. 6. That the provisions of this law shall cease to be operative should it 
be judicially determined that said company has entered any conspiracy or un- 
lawful combination or monopoly in restraint of trade. 

Sec. 7. That the Secretary of War shall continue the present permits for the 
diversion of fifteen thousand six liundred cubic feet per second. 



Niagara Falls, N. Y., January 18, 1912. 
By Delegate F. M. Hallett : 

Whereas the Conunittee on Foreign Affairs of the House of Representatives 
is at this time considering legislation on Niagara River diversion for power 
development ; and 

Whereas there is now no competition among the Niagara River power com- 
jianies, with the result that exorbitant prices are charged for electric current 
for power and lighting purposes in this city: Therefore be it 

Resolved, That the delegates in the Trades and I^abor Council of Niagara 
Falls, N. Y., assembled, respectfully urge that the committee forward legisla- 
tion extending the limit of Niagara River diversion from 15,600 cubic feet per 
f econd to 20,000 cubic feet per second ; and 

That the Committee on Foreign Affairs make provision in the pending bill 
to grant to the city of Niagara Falls the right to apply for a permit to divert 
water from the Niagara River for power pvn-poses. so as to permit the creation 
of a municipal electric lighting and power plant; and be it fui'ther 

Resolved. That a copy of this resolution be forwarded to Representative 
Y/illiam Sulzer. of New York, chairman of the Conunittee on Foreign Affairs: 
to. Representative James S. Simmons, of Niagara Falls, N. Y. ; and to Repre- 
sentative Charles Bennett Smith, of Buffalo, N. Y., asking their efforts to for- 
ward such legislation. 

Jos. P. HuNTKR. President. 
John J. Nichols, fiecretarij. 



The Toronto Power Co. (Ltd.), 
Toronto, Ontario, January 20, 1912. 
J [on. IIenrv Lewis Stimson, 

Secretary of War, Washington, D. C. 
Dear Sir: Re '.'An act for the control of the waters of Niagara River, for 
the preservation of Niagara Falls, and for other purposes,'' and license of the 
Niagara Falls Electrical Transmission Co. 

We understand that in the recent hearing in regard to the licenses for ini- 
i-ortiug power to the United States from Canada under what is known as the 
r.urton Act. which licenses are expiring March 1, 1912, that the statement was 



PRESERVATIOiSr OF NIAGARA FALLS. 383 

made that tlie 46.000 horsepower allowed the Niagara Falls Electrical Trans- 
missioii Co. for importation under the terms of the act was not beinfi used, and 
was consequently not availal)le for United States demand for power. 

If you will be good enouyli to grant us the favor of an interview, we will he 
glad to go to Washington any time convenient to your honorable self to refute 
this statement. 

Aery truly, yours. Robert J. Fleming, General Manager. 

[First indorsement.] 

War Department, 
Office of the Secretary. 

. January 2:i, I!I12. 
liCtter dateil Toronto, Ontario. .January '20. from Robert J. Fleming, general 
manager the Toronto Power Co. (Ltd.). i-e use of power allowed the Niagara 
Falls Electrical Transmission Co. 

The Secretary of War wishes a report from you on this matter. 

W. R. Pedigo, Private Sccrcfarji. 
The Chief of Engineers. 

ISoconrl indorspment.] 

War Department, 
Office of the Chief of Engineers, 

Washington, January 23, l'.H2. 

1. Respectfully returned to the Secretary of War. 

2. It is believed that the hearing referred to within is the one which has been 
in progress before the Committee on Foreign Affairs of the House of Repre- 
sentatives since tlie 16th instant, with reference to the diversion of water at 
Niagara Falls and the importation of electrical power from Canada, and which, 
it lias been announced, will be resumed at 10 o'clock on the morning of the 26th 
instant. Representatives of different power and transmission companies have 
been present at the various sessions, and free expression of their views has 
been invited. 

3. It is recommended that ^Ir. Fleming be informed accordingly by telegraph 
and that this letter be referred to Hon. William Sulzer, chairman of the House 
Committee on Foreign Affairs, with a statement of the action taken by the Sec- 
retary of War. 

EwD. Burr. 
Acting Chief of Engineers. 

[Third indorsement.] 

War Department, January 2). W12. 
Respectfully referred to Hon. William Sulzer. chairman Committee on For- 
eign Affairs, House of Representatives. Mr. Fleming having been advised in 
Accordance with the recommendation of the Acting Chief of Engineers, United 
States Army — cop3- of telegram herewith. 
By order of the Secretary of War : 

John C. Scofield, 
Assistant and Chief Clerk. 



- Wasiungton, D. C, February 3. 1912. 

The Secretary of War. 

Dear Sir: Representing the Erie & Ontario Sanitary Canal Co.. I offer to pay 
one-sixth of the cost of diffusing the waters above the Horseshoe Falls, accord- 
ing to plans of Isham Randolph, explained heretofore to President Taft and the 
engineers of the Canadian Government, provided the grant asked for b.v the 
company of 6,000 cubic feet per second is made under the terms of the treaty 
between the United States and Great Britain signed January 11, 1909. 

Maj. Keller has recommended, in Senate Document No. 105, page 15, that 
similar dift"usion works be paid for by the power companies, and it is to carry 
out the spirit of that recommendation that I make this statement. 
Yours, truly, 

Erie & Ontario Sanitary Canal Co., 
By ^IiLLARD F. Bowen, President. 



384 PKESERVATIOX OF ^: I AGAR A FALLS. 

La Sali.k. N. Y., Jdinianj .). Ii)l2. 
Hou. Wm. Sri.zKR. yi. C, 

\\'(i.sliiiigt*j-ii, D. C. 

Dear .Vik: Since the inclosed letter was written the Burton Act has been 
extended to March 31, 1912, thus making it doubly certain that the next seasion 
of Congress will be called upon for some solution of this great i)i'oblem. 

In the preparation of the accompanying letter I have made use of the reports 
of I'nited States engineers, the published records of hearings before the Com- 
mittees on Rivers and Harbors at Washington, and my own personal knowledge 
of the power situation on the Niagara frontier. I have no financial interest 
in or connection with any existing or prospective power company, and only 
desire that, with just and proper regard for vested interests of great value that 
can not be ignored, such legislation may now be had as will most surely promote 
the public welfare. 

It certainly is true that the conservation and proper utilization of the nation's 
water power takes rank in importance with the great recliunation prospects of 
the West in which the Government is now wisely engaged. If in your estima- 
tion I can be of any further use in connection with the Niagara situation, I 
shall be glati to be considered at your service. 

^'ery respectfully, yours, John W. Williams. 



730 Ellicott Square, Jaittutry !), 1912. 
Hon. William Sulzer, 
WashingtoiK D. C. 
Dear Sir: I hear that the State conservjition commissioners are to be heard 
before your committee next Tuesday; is that a fact? 

Now that the International .ioint commission is organized. I wish that the 
whole subject of the Niagara River waters could be referred to that commis- 
sion; I talked with Chairman Tawney last Sunday Iiere about it. and he W'as 
not sure of their jurisdiction; but if all agree upon a reference and join iu 
the hearhig there is no doubt of jurisdiction. As soon as rules of procedure are 
adoi)ted hearings will be held, and I hope that we can get to work without 
delay. 

Yours, verv trulv. Mii.i.ard F. Bowex. 



WeRTHEIMER & Dl'FFY, 

.302-S0.'i HnHulHHiy, Xcw Yorl:. Frhrnaiy 6, 1912, 
Hon. William Stjlzer, 

Chairman Foreign Relations Committee, Washington. D. C. 
My Dear Sir : As a citizen interested in the event, I write to bespeak your 
active and favorable interest in behalf of the bill which is now before your coni- 
uiittce atfecting the ;im<>unt of the water which may be diverted at Niagara 
Falls for the i)urposes of power. My understanding is that this bill is intende<l 
to make effective the conditions of the recent treaty between the Unite*! States 
and Great Britain, iund it is highly desirable that the present anomalous con- 
dition shall not be permitted to continue, but that the State of New York shall 
have the right to its just proportion of water, which me;ins increased manu- 
facturing facilities and the further development of the industries of our State. 
It is needless to suggest that your connnittee will properly protect the national 
interests and by proper provisio\i secure the supervision of the War Depart- 
ment as to the due and i)roper exercise of the rights which the bill would confer. 
TTie writer trusts that your committee will promptly rei>ort the bill out. and 
feels that your record for <lisinterested public service will be enhanced by the 
vigoj'ons <-hanipionshii) of this fair and reasonable measure. 
Very truly, yours, 

Jas. Kino Duffy. 



Clifford B. Harmon & Co. (Inc.). 

iYeio York, Fehruary 6, 1912. 

Hon. William Sulzer, 

Chairman Committee on Foreign Relations, Washi^ngton, D. C 
Di:ar Sir: I understand that your committee is preparing to report out a 
bill determining the amount of water which may be diverted from Niagara 
River above the Falls for power purposes, thus making effective the recent 



PRESERVATION OF NIAGARA FALLS, 385 

treaty between Great Britain and the United States. In onr oi)inion. the niaxi- 
innin limitation of 20.000 cubic feet per second allowed by the treaty should be 
permitted to be diverted, in order that the industrial develoi)ment of the State 
of New York may be enhanced as fully a.s possible. To this end it is desirable 
that the present Burton Act should not be continued, but that the proper 
officers of the State of New York should be given the right to determine to 
whom and in what amounts the water should be diverted, subject only to the 
supervision of the Secretary of War, who nuist necessarily lia^e the right to 
determine whether or not the maximum is exceeded. 

Trusting tliat you and the members of your committee will report out and 
support legislation of this character, as we believe the Conservation Commission 
of the State of New York are fully qualified to see that it is developed to the 
interests of resident users in this State, we are. 

Very respectfully, yours, Clifforu B. Harmon. 



State of New York, Conservation Commission, 

Albany, Jmiuary 11, 1912. 
Hon. William Sulzer, 

Chairman Committee on Foreign Affairs, W'ashinylon, D. C. 
Dear Mr. Sulzer : We are in receipt of your valued favor of January 15 
relative to your committee having fixed next Tuesday, the 23d instant, at 10 
o'clock a. m., to hear the representatives of tlie State of New York, and tliank 
you for having advised us. 

Very truly, yours. Conservation Commission, 

By Albert E. Hoyt, 

Secretary to Commission. 



Committee on Expenditures in the Treasury Department, 

United States Senate, 
WusJiiiKjtoii. Jaiiiiary IS, 1912. 
Hon. William Sulzer, 

House of Representatires. 
My Dear Mr. Sulzer: I have your kind invitation to appear before the com- 
mittee in regard to Niagara Falls. I shall probably wish to say something on 
this sub.ject, if you can afford opportunity before you come to a final conclusion. 
I would rather wait until the views of the others are i)resented. ' 
Y'ours, very respectfully, 

T. E. Burton. 



Chamber of Commerce and Manufacturers' Club, 

Buffalo, January 2J/, 1912. 
Hon. William Sulzer, 

Chairman Committee on Foreifjn Affairs. 

House of Reyreseutatircs. Washington. D. C. 
Dear Sir: lleferring to report in newspapers that the statement has been 
made to you that the public-service commission is unable to coi>e with the situ- 
ation of charges by electrical coni'ianies for power. I desire to say that such is 
not the ojiinion of this body, and to express to you on the contrary that we 
believe that the macliiuery devised and in successful operation for the control 
of public-service corporations in general, and of the electrical situation in par- 
ticular, is entirely ade<iuate to deal with the sui).iect. and I desire further to 
state that this is the general feeling in this coniiuunity. 

This body has originated and promoted an investigation into the changes 
made in Buffalo for elecrical power, which is now i>ending. It desires to 
secure for its citizens a readjustment and in many ca.'jes a reduction of present 
charges, and it is satisfied with the tribunal established by law to decide the 
issue. 

In conclusion. I beg leave earnestly and cordially to repeat the iuvitatif>n 
extended to your counnittee to visit the Niagara frontier and gather the facts 
jat first hand. 

Yours, resjx'ctf ul ly. 

Chamber of Commerce and Manufacturers' Clur, 
By ED(iAR C. Neal, 

Vice President and Acting President. 



386 PRESEKVATIOX OF NIAGARA FALLS. 

La Sai.i.e, X. Y.. January 15, 1912. 
Hon. Wm. Sulzer, M. C, 

Chairman House Canwiittee on Foreign Affairs. Washington. D. C. 

My Dear Sir: I regret very much being unable to attend the hearing on 
Niagara power before your committee on Tuesday, but wish to present for 
your consideration a few facts regarding the situation. 

The Hydraulic Power Co., of Niagara Falls, will undoubtedly make a strong 
effort at this session of Congress to secure for its own use nearly all the 
remaining 4,400 cubic feet of water permitted by the treaty. On the basis of 
present effective use of Niagara waters for power development this company 
undoubtedly has a paramount claim. I think, however, certain other things 
should be known before so valuable a grant of public property is made. 

1. The Hydraulic Power Co. is a close corporation, all the stockholders (so 
far as known) being members of one family. 

2. Its property rights were acquired at sheriff's sale at a price far below 
their actual value of cost. 

3. It is also true that the location of its plant and character of its develop- 
ment have done more than all others to destroy the beauties of nature near 
the cataract. 

4. The Hydraulic Power Co. can not now be earning less than 20 per cent 
net annually on its entire investment. This will be greatly increased If their 
appeal is now granted. 

May I suggest and urge that before any additional water is granted to this 
or any other company its affairs be fully investigated and a sworn statement 
of its present earnings and profits be laid before Congress. 

If this is done I believe if any additional grant is made it will be conditioned 
upon a libei'al return to the Government as grantor of property in this case 
unquestionably worth many millions to the grantees. 

Otherwise, and in any event, it seems to me it would be far wiser and more 
conducive to the public good if this request for additional water by private 
corporations was denied. In my judgment the only proi^er course is to remove 
all restrictions on the importation of power from Canada, and then use the 
remaining water on this side to develop the greatest possible amount of power. 
Having already fully presented my views along this line in a previous letter, 
it seems unnecessary to add more at this time. 

Thanking you for the notice sent me and assuring you of my continued high 
regard, I am, 

Very sincerely, yours, John W. Williams. 

P. S. — Four thousand four hundred feet of water will develop, at Devils 
Hole, 109,000 horsepower; at Hydraulic Power Co., 85,000 horsepower; at 
Niagara Falls Power Co., 56,000 horsepower. 



[Tplesrams.l 



Albany, N. Y., January 17. 



Hon. William Sulzer, 

Chairman Committee on Foreign Affairs, 

Hoit^e of Representatives, Washington, D. C: 
Please telegraph imme<liately day and hour to which your committee ad- 
journed yesterday's hearing on Smith Niagara Falls bill. 

New 'York State Conserv.\tion Commission. 



Washington, D. C, January 17, 1912. 
New York Conservation Commission, 

Capitol, Albany, N. Y.: 
Hearings on Niagara bills will be continued to-morrow morning and Saturday. 
Itepresenta fives of the State of New York will be heard next Tuesday morning, 
]0 o'clock. All Information sent to Attorney General Carmody and the governor. 

Wm. Sulzer. 



PEESERVATION OF NIAGAEA FALLS. 387 

Washington, D. C, January 16, 1912. 
Hon. John A. Dix, Alhitui/, N. Y.: 

By arrangement with Attorney General Carmody the Committee on Foreign 
Affairs will hear the representatives of the State of New York on the Niagara 
Falls power bills next Tuesday morning, January 23, instant. 

Wm. Sulzer. 



Washington, D. C,. January 13, 1912. 
Plon. John A. Mason, 

Secretary to the Governor, Albany, N. Y.: 
The hearing on the bills relating to the Niagara water power has beeu fixed 
by the Committee on Foreign Affairs for the 16th instant at 10 o'clock in the 
morning. The committee is anxious to hear the representatives of the State. 
If they can not be present on the 16th. I think I can get an adjournment until 
the later part of the week, say 18th or 19th, if this will be more convenient 
to the representatives of the State of New York. Please advise. Do not want 
to close the hearing until you have ample opportunity to be heard. 

Wm. Sulzer. 



-State of New York, 
Public-Skrvice Commission, Second District, 

Albany, January 12, 1912. 
Hon. William Sulzer, 

Chairman Commitee on Foreign Affairs, 

House of Representatives, Washington, D. C. 
Dear Sir : Your letter of January 10 in relation to a hearing to be held before 
your committee on Tuesday, the 16th instant, in relation to bills introduced by 
Congressmen Smith and Simmons relating to Niagara Falls has been received 
and a copy transmitted to each member of the commission. 
Yours, very truly, 

J. C. Kenny, Secretary. 



American Civic Association, 

Office of the President, 
Harrisburg, Pa., January 12, 1912. 
Hon. William Sulzer, 

House of Representatives, WasJtingion, D. C. 

Dear Sir: I am in receipt of a letter from your secretary under date of 
January 10 informing me of the hearing arranged for Tuesday morning next, 
January 16, at 10 o'clock, on bills pending before the Conuuittee on Foreign 
Affairs, having relation to the use of the water of Niagara River for power 
production. 

I thank you heartily for your courtesy in thus notifj'iug me, and inform you 
with deep regret that It is impracticable for me to be present, owing to preced- 
ing I'ngagements which, in justice to others. I can not break. I must be in 
Chicago on the morning of January 17, to do which it is necessary to leave 
Harrisburg on the afternoon of January 16, and I have several imperative 
engagements here in the meantime for Monday and Tuesday. 

The matter upon which you are to pass is of very great importance. So far 
as I know the American Civic Association is the only organization likely to 
:ip)H',ir for tli'^ iiitcrests of the imblic. while there tan be no d<iubt as to the 
presence on the occasion mentioned of those serving the special Interests in- 
volved. I regret it has not been practicable to give a longer notice of the 
hearing. 

Our secretary. Mr. Watrous, will be present, and I have no doubt will ade- 
quately represent the association, or at least as adequatelj' as can be done under 
the circumstances of short notice. I have asked him by telephone to see that 
ihe bills which are to be considered are forwarded to me to-day. 

I respectfully ask that the proceedings of the committee be not only reported 
as usual, but that provision be made for printing them. The legislation under 



388 PRESERVATION OF NIAGARA FALLS, 

consideration has to tlo with matters of monumental interest and importance, 
;;nd it is extremely desirable that access be had to the statements made at the 
hearing. 

Yours, truly, J. Horace McFarland, 

President. 



State of New York, 
Office of the Attorney General. 

Albany, January 12, 1912. 
Hon. William Sulzer, 

Mc-nhcr of Congresx, Washington. D. C. 
Dear Congressman : The State engineer and myself have just had a confer- 
ence with the governor in regard to the proposed hearing ui)on the Niagara 
Falls Power Co. bill. The governor is sending you a telegram this afternoon 
suggesting the arrangement of a convenitMit «l;'te later when the conservation 
commission, the State engineer's department, and the attorney general's depart- 
ment may appear and make known the attitude of the State in regard to this 
bill. At present yon know the whole question of waler. iKnver, conservation, 
and distribution is unsettled in this State. The conservation commission is 
working upon a policy which is not ready yet for adoption. It is necessary, 
therefore, for us to have some additional time for a further conference so that 
we may be prepared to announce the policy of the State while this bill is in 
committee. We will not ask for any adjournment that will embarrass Congress, 
l)ut would like very much to have the matter deferred until possibly early in 
February- I simply suggest this date in a haphazard way, but think if you will 
tix a date along about that tune we may be able to appear .-aid express the policy 
of the State upon the subject involvetl in the bill. 

I will deem this an oflScial as well as a personal courtesy. 
Yours, very respectfully, 

Thomas C.vrmodv, Attorney (lencral. 



To tltv tiina-.c ami House of Rei)resentatir<s: 

The act of Congress approved June 20. IDOli. " For the control and regulation 
of the waters of Niagara IJiver. for the ju'eservation of Niagara Falls, and for 
other purpost's." committed certain duties t<t the Secretary of War which 
required extensive scientific investigations in order to obtain th«' information 
essential to intelligent action. In accordance with a recomniendaton of the 
Secretary of War contained in a letter to me on the l!)th instant. I am trans- 
mitting herewith for the information of Congress reiK)rts of those investi- 
gations made by the officer in charge of the survey of the northern and north- 
western lakes, dated November oO, 1VK>S. and September 21, 1901). which, as 
explained in the letter of the Secretary of War. also tran.smitted herewith, 
have hitherto been retained for the assistance of the executive branch of the 
Oovernment. 

A final report of the proceeilings of the War Departnicnt in connec-tion with the 
act referred to will be included in the forthcoming annual report. 

W.M. II. Taft. 

The WiiiTi: llorsi:. Ani/ust 21. 1911. 



WaH DKI'AinMENT. 

\Vasli.inyt(»i. Aiifiiist 19. 1911. 
The Prksidknt : 

The act of Congress ap!)roved .lune 20. IfMW. •' F<ir the control .md regulation 
..f the waters of Niagara Itiver. for the preservation of Niagara Falls, and for 
>ther pnriKtses," authorized the Secretary of War to grant permits for the 
diversion of water from the Niagara Uiver for the creation of power to an 
aggregate amount of ir..(MXt cubic feet per second, and it also authorized him 
to grant permits for the diversion of additional amounts of water for power 
imrposes after the approximate amount of l."),fi(M) feet per second had been 
illverted for a period of not less than six months, but only to such additional 



PRESERVATION" OF NIAGARA FALLS. 389 

auioinit. " if any, as in coniuH-tlon with tlie amount divM-twl on tlie Canadian 
side shall not injure or interfere \A-ith the navigable capacity of said river, or 
its integrity and proper volume as a boundary stream, or the scenic grandeur 
of Niagara Falls." 

It VA'as early recognized that the information necessary for intelligent action 
ui>on matters of such complex character could only be acquired by extended 
observations of a precise and ditticult nature, and the local study of the ques- 
tions involved was therefore assigned soon after the ai)i)roval of the act to the 
officer in charge of the survey uf the northern and northwestern lakes, then 
conducting oi>erations in the vicinity of Niagara Falls. 

Comprehensive and valuable reports on the subject submitted by that ofHcer 
November 3U. lUCS. and St'ptember 21, 1!¥»0, have hitherto been retained for the 
assistance of the executive brancli of the (lovernment, but as the i)rovisions of 
the act of June 29, 190ti. as extendwl by the joint resolution approved June 3, 
1JX)9, expired by limitation on the 29th of June last, and as the executive 
departments have no furtlier duty to jierform in connection with that act, I 
submit herewith the rejiorts in (luestion and recommend that they now be 
transmitted to Congress. 

A tinal report of the proceinlings under the provisions of the act referred 
to will be included with my forthcoming annual reiiort. 
^'ery respectfully, 

Henry L. Stimsox. 

Secretary of War. 



MEMORANDUM CONCERNING THE RESTRICTIONS ON THE TSE OF 

NIAGARA POWER. 

First. The campaign for the purpose of preserving the scenic grandeur of 
Niagara Falls was begun b.v the American Civic Association in the summer 
of 1905. The association asserted that Niagara Falls had been seriously in- 
jured It.v the power c(,)mpanies, and unless legislation was enacted b.v Congress 
the Falls would speedily be entirely ruined. The annual meeting of the asso- 
ciation was held at Cleveland in the autunm of 1905. and the association 
secured the support of Mr. Burton, then Member of Congress from that district. 
The President of the T'nited States in his annual message to Congress brietiy 
rectnumended that legislation he enacted to preserve the Falls from destruction. 
The association procured the signatures, it is said, of 100,000 people asking 
for such legislation. Soon after the meeting of Congress Mr. Burton introduced 
his bill, entitled "An act f(n- the control and regulation of the waters of Ni- 
agara River, for the preservation of Niagara Falls, and for other purposes." 
Numerous hearings were held before the Rivers and Harbors Connnittee, of 
which Mr. Burton was then chairman, at which the constitutionality of the 
proposed legislation, the necessity for it. and the form of it were eIal)orately 
argued. 

The bill was i)assed and approved by the I'resident on June 20. 1900. It was 
to remain in force for three yi-ars, but on March o. 1909. it was. by Joint reso- 
lution, extended for two years. 

f'nless further extended it will expire by limitation on June 2'.t. 1911. 

Second. Section 4 of the act recpu'Sted the President of the T'nited States to 
negotiate a treaty with the (Government of (Great Britain, providing " for such 
regulation and control of the waters of Niagara River and its tributaries as 
will iireserve the scenic grandeur of Niagara Falls, and of the rapids in said 
river." Such a treaty was negotiated, ratified by the Senate on March 3. 19(i9, 
ratified by Great Britain in March. 1910. and proclaimed by the President to 
be in force from and after Ma.v 13. 1910. 

Third. I'he treaty is the supreme law of the land. The Burton law is in 
some respects inconsistent with the treaty. 

The Burton law restricts the diversion of water on the American side to 
15,000 cubic feet per second: the treaty raises the limit of restriction to 20.(kk) 
cubic feet per second. 

The Burton law places restrictions ui)on the amount of power which can be 
transmitted into the United States from Canada: the treaty makes no restric- 
tion on the transmission of power from Canada into the T'nited States. 

Under these circumstances Mr. Alexander, Member of Congress from Buffalo, 
introduced a bill in June, 1910. amending the Burton law so as t(» make it 



390 PRESERVATION OF NIAGARA FALLS. 

roiiiply vvitli the teviHs of the treaty, and exteiulinir tlie operations of the Bvirton 
law thn.s amended so lon^ as the treaty remains in force. The Alexander bill 
increases the amount of water which can be diverted on the American side from 
];j,GOO cubic feet per second to 20,r»00 cubic feet per second: and it leaves out 
of the i)ill all restrictions upon the transmission of i)ower from Canada into 
the United States. In other respects the original Burton law is not changed, 
'i'he orifriual law was intended, in pursuance of its purpose to preserve Niagara 
Falls, to ijreveut any new power projects from being started at Niagara ; and 
it therefore stipulated that the permits, which under the law the Secretary 
of War was authorized to issue for the diversion of water on the American side, 
should be issued only to those individuals, companies, or corporations which 
were at that time actually producing power " from the waters of said river, 
or its tributaries, in the State of New York, or from the Erie Canal." The 
original law also prescribed penalties of fine and imprisonment for violations 
of the law, and gave jurisdiction over such cases to the United States circuit 
court. These provisions in identical language are repeated in the Alexander 
bill, which is simply the Burton law amended to accord with the treaty. 

This bill failed to pass. On April 20, 1011, Senator Root inti'oduced a bill 
[S. 1490] to give effect to the treaty, and the bill is now pending. 

Fourth. Prior to the introduction of the Burton law two American and three 
Canadian corporations, acting on the faith of laws enacteil and contracts made 
by and with the State of New York, the Province of Ontario, and the Dominion 
of Canada, had undertaken the construction of five extensive projects for the 
development of power, three of them on the Canadian and two of then) on the 
American side. At that time upward of $30,000,000 h'hd been expended on these 
projects, which were all of them incomplete ; but relying on the rights granted 
to them by the i)ublic authorities on both sides of the river, the companies had 
made their plans and entered into contracts, which would have entailed enor- 
mous financial loss, if not entire ruin, unless the companies had been permitted 
to carry out these projects. It was quite clearly shown hi the hearings 
before the Burton conunittee that the diversion of the water necessary to carry 
out to their full extent the projects which then were only partially completed, 
would not result in any serious injury to the scenic grandeur of Niagara Falls. 
N(!vertheless the Burton law only i)rovided for the partial completion of 
these projects. Its restrictions upon the diversion of water on the American 
side and the transmission of power from the Canadian side were such that the 
companies would only have been able partially to complete their projects. This 
injustice and ine<juity were remedied by the treaty, which was the result of 
negotiations extending over nearly two years in which the whole subject was 
thoroughly examined with the aid of Government experts on both sides. The 
treaty carries out the original purpose of the Burton Act to preserve the scenic 
grandeur of Niagara Falls by preventing any new power enterprises, but it per- 
mits the companies which had expended such enormous sums of money to carry 
out the plans which they had formed on the faith of the law as it stood when 
such plans were made. These plans contemplated the use of a small portion 
of the waters of Niagara for the deli\ ery of chea]) electrical power to the people 
of central and western New Ycuk, nearly 2,500.{KI0 in number, occupying a broad 
belt niore than 200 miles in length between Utica and Dunkirk. Buffalo and 
the entire Niagara frontier from Niagara Falls to the steel industries at Lacka- 
wanna, as well as the cities of Bochester. Syracuse, Auburn, Lockport, James- 
town, Dunkirk, Batavia, and many smaller couunuuities are vitally interested 
in seeing that this treaty is carried into effect, and that it should no longer be 
practicallv nullified by the Burton law in its present form. 

[jiless the treaty is given full elfect the industries of central and western 
New York will be seriously criiiplcd and their development arrested, because 
th<! comitanies which now have transmission lines of a total length of r>00 
miles, supplying Niagara power to tht-se industries, have about reached the 
limit of the power which they can obtain ul!le^s (be Alexander bill is enacted 
into law. 

Fifth. The average rtow of the Niagara Biver, as determined by the obser- 
vatiiMis of the United States engineers extending over a period of 01 years, is 
212,000 cubic feet per second. The treaty authorizes 20.0<W cubic feet to be 
taken out above the Falls on tlie American side and :5t;,000 cubic feet on the 
Ciinadian side, a total of .^»(),000 cubic feet, or about one-fourth of the entire 
amount. 

The amount of power which can be producwl by 1 oibic foot pei-_ second 
varies among the different power companies from !» horsepower to 17 horse- 



PRESERVATION OF NIAGARA FAL,I^, 391 

power, depending upon where the water is taken and the nature of the in- 
stallMtion. Tlie average is n little less than 13 horsepower per cubic foot. 
The total amount of power which could be developed at Niagara on the basis 
of using all of the average flow of the river is therefore about 2.750,000 horse- 
])ower. and the am.ourt of jower tliat c;;n be develoi>ed under the restrictions 
imposed by the treaty will be less than 700,000 horsepower. The present in- 
stallation at the Falls is approximately 400,000 horsepower, which will shortly 
be increased to about 450,000 horsepower. 

Sixth. Elaborate measurements taken by the United States engineers in 
1908, at a time when the American power houses were all temporarily shut 
down, show that the difference in depth in the water passing over the American 
Fall when the power houses are in operation and when not a wheel is turning 
is only a fraction of an inch. This is determined by minute and complicated 
scientific measurements. It is not visible to the eye, and it has no effect upon 
the scenic grandeur of Niagara Falls. 

In Exhibit D are reproductions of photographs of the Falls taken in 187G. 
ISS'5, and l.'^SS. wheu there were no electric-ix)wer plants; in 1900 and 1905, 
when the amount of power in use was about 100,000 hoi'sepower; and iu 1910, 
wheu the amount was more than 330.000 horsepower. These photographs show 
that under similar conditions, in spite of an increasing diversion of water for 
power purposes, the appearance of the Falls presents no change which can be 
detecte^l by the eye. It can be confidently asserted that, under the restrictions 
imposed by the treat.\, it will require scientific raeasureiuents to detect the 
change in the depth of the water at the Falls, but that this change will not be 
visible to the eye. The scenic grandeur of Niagara Falls will be preserved un- 
impaired. 

Seventh. The production of 1 horsepower continuously for 24 hours through- 
out every day in the year requires the consumption, under the most improved 
and modern apparatus, of about 13 tons of coal per annum. The treaty has 
decided that about 700,000 horsepower can be taken from Niagara without 
affecting its scenic grandeur. To produce this amount of power by coal would 
require about 8,500,000 tons of coal per annum. This is a comparatively small 
portion of the 450,000,000 tons of coal consumed in the TTnited States every 
yeai-, but it is still worth saving. There is absolutely no destruction ol 
natural resources in the use of falling water for producing power. The eternal 
laws of gravity, evaporation, and precipitation form a cycle in which the sun's 
heat is the ultimate source of energy ; and in this cycle the loss of such energy 
is inapi)reciable, and can not be measured by any instruments or methods 
known to man. 

The scenic grandeur of Niagara appeals to the imagination as a manifesta- 
tion of overwhelming force. The utilization of a small portion of this titanic 
force by the wit and brain of man for the benefit of his fellow men equally 
appeals to the imagination ; and the thousands of visitors who annually go 
through the different power houses are quite as much impressed by the evi- 
dences which they there see of mechanical ingenuity and of the control by man 
over gigantic force as they are by the spectacle of this gigantic force going to 
waste. 

Eighth, lae treaty runs for five years from May, 1910, and thereafter until 
terminated by either country on one year's notice. It has determined and 
fixed, after the most careful consideration, the restrictions which, so long as 
the treaty remains in force, are placed upon the use of Niagara water for power 
pm-poses. 

T'nder the contracts made with the Canadian authorities by the Canadian 
power conqianies one-half of the power generated in Canada can be transmittal 
to the United States. The Burton law undertakes to nullify these contracts 
by limiting the amount of power which could be brought in from Canada. The 
treaty, recognizing that no harm could be done to Canada and nuich good 
couUl be done to the United States by bringing in this surplus power fron» 
Canada, placed no restrictions upon the transmission of i)ower from Canada, 
so lliat the manufacturers of western New York might have tlie l)enefit of all 
the power which, under their agreements with the Canadian authorities, the 
Canadian power companies can send here. 

It only remains to enact such legislation as will give full force and effect to 
the treaty. 

Fu.^Ncis V. Crekne. 



392 PRESERVATION- OF XIACJARA FALLS. 

Exhibit A. 

THE BURTON LAW. 

AN ACT For tho control and itgulation of the waters of Niagara Kiver. for the preserva- 
tion of Nia(i:arH Falls, and for other purposes. I Public — No. 367.] 

Be it enacted by the Senate and House of Representatives of the United State.'^ 
of America in Congress assembled, That the diversion of water from Niai;ara 
River or its tributaries, in the .State of New York, is hereby prohibiteil, except 
with the consent of the Secretary of War as hereinafter authorized in section 2 
of this act: Provided, That this prohibition shall not be interpreted as for- 
bidding the diversion of the waters of the (Jreat Lakes or of Niagara River for 
sanitary or domestic purposes, or for navigjition, the amount of which may be 
fixed from time to time by the Congress of tlie United States, or by the Secre- 
tary of War of the United States under its direction. 

Sec. 2. That the Secretary of War is hereby authorized to grant permits for 
the diversion of water in the United States from said Niagara River or its 
tributaries for the creation of power to individuals, companies, or corporations 
wlxich are now actually producing power from the waters of said river, or its 
tributaries, in the State of New York, or from tlie U.rie Canal ; also permits for 
the tmusmission of power from the Dominion of Canada into the TTnited States. 
to companies legally authorized therefor, both for diversion and transmission, 
as hereinafter stated, but permits for diversion shall be issued only to the 
individuals, companies, or corporations as aforesaid and only to the amount 
now actually in u.se or contracte<l to be u.simI in factories the buildings for which 
ai'e now in process of construction, noi exceetling to any one individual, com- 
pany, or corporation as aforesjiid a maximum amount of .S,t500 cubic feet per 
second and not exceeding to all individuals, companies, or corj^orations as afore- 
said an aggregate amount of 15,000 cubic feet per second; but no revocable 
permits shall be is.sued by the said Secretary under the provisions hereafter 
set forth for tlie diversion of additional amounts of water from the said river 
or its tributaries until the approximate amount for which i)ermits may be 
issued as above, to wit, 15,000 cubic feet per secrond. shall for a period of not 
less than six months have been diverteil from the wiiters of said river or its 
tributaries, in the State of New York: I'rorided. That the said Secretary, sub- 
ject to the provisions of section 5 of this act. under the limitations relating to 
time above set forth, is hereby authorizetl to grant revocable permits froni time 
to time to such indivi<lna!s. companies, or cori)orations. or their assigns, for the 
diversion of additional amounts of water from the said river or its tributaries 
to such amount, if any. as, in connection with the amount diverted on the 
Canadian side, shall not injure or interfere with the navigable cajtacity of said 
river or Its Integrity and proper volume as a boimdary stream or the' scenic 
grandeur of Niagara Falls; and that the quantity of electrical power which nuiy 
by permits l)e allowed to be transmittefl from the Dominion of Canada into the 
T'nited Slates shall be lOO.tMXi Imrsepower : I'rorided farther. That the said 
Secretary, subject to tlie provisions of section ." of this act. may issue revotable 
permits for tlie transmission of additional electrical i>ower so generated in 
Canada, but in no exent shall the amonnt iiiclndeil in such permits, together 
with the said IGO.OOO horsepower and the amoinit generated and ustnl in Canada. 
<>xceeti;>50.000 horseiK>wer ; I'rorided alirays. That the itrovlsions herein per- 
mitting diversions and tixing the aggregate horsepower herein permitted to be 
transmitted into the T'nited States as aforesaid are intended as a limitation 
on the atithority of the Secretary of War. and shall in no wise be coi-strued as 
a direction to said Secretary to issue p<'rinits. and the Secretary of War shall 
make regulations preventing or limiting the diversion of water .-ind the a<lmis- 
sion of electrical power as herein stattsl; and the permits for the transmis- 
sion of eUvtrical jiower issued by the Secretary of War may specify the per- 
sons, comitanies. or cori.orations by whom the same shall be transmitted and 
the persons. conipanie.s. or corporations to whom the same shall be delivered. 

Sec. o. That any person. com!»any. or corporation diverting water from the 
said Niagara River or its tributaries, or transmitting electrical power Into the 
United States from Canada, except as herein stateil.* or violating any of the 
})rovlslons of this act. shall be deemed guilty of a misdemeanor, and (m con- 
viction thereof shall be punished by a line not exceeding !?2.r.(Xi nor less than 
^500, or by imprisonment ( in the case of a natural person i not exceeding one 
year, or by lioth such inuiishnieiits. in the dis<'retion of the court. And. further, 
the removal of any structures or parts of structures erected In violati(m of 



PRESERVATION OF NIAGARA FAL/LS, 39S 

this net. or any c-onstruction iucidontal to or usetl for such diversion of water 
or transmission of power as is heroin prohibited, as well as any diversion of 
water or transmission of jiower in violation hereof, may be enforced or enjoined 
at the suit of the United States by any circuit court having jurisdiction in any 
district in which the same may be located, and proper proceedings to this end 
may be instituted under the direction of the Attorney General of the United 
States. 

Sec. 4. That the President of the United States is respectfully requested to 
open negotiations with the (Tovernment of (ireat Britain for the purpose of 
effectually providiuix. by suitable treaty with siiid Government, for such regula- 
tion and control of the waters of Niagara River and its tributaries as will pre- 
serve the scenic grandeur of Niagara Falls and of the rapids in said river. 

Skc. 5. That the provisions of this act shall remain in force for three years 
from and after date of its passage, at the expiration of which time all permits 
granted hereunder by the Secretary of War shall terminate unless sooner re- 
voked, and the Secretary of War is hereby authorized to revoke any or all per- 
mits granted by him by authority of this art. and nothing herein contained 
shall be held to confirm, establish, or confer any rights heretofore claimed or 
exercised in the diversion of water or the transmission of power. 

Skc. (j. That for accomi)lishing the purposes detailed in this act the sum of 
.$r»<.».iH)0, or so much thereof as may i)e necessary, is hereby appropriated from 
any moneys in the Treasury not otherwise appropriated. 

Skc. 7. That the right to alter, amend, or repeal this act is hereby expressly 
reserved. 

Approved. June 29, 1906. 

.JOINT RESOLUTION Extendins <1ip opeiatiou of nn act for the control .•iiul roirulation of 
tho waters of Niagara River, for tlie proservation of Niagara Falls, and for other pur- 
poses. I Public — fl. J. Res. 262.1 

Whereas the provisions of the act entitled "An act for the control and regula- 
tion of the waters of Niagara Kiver, for the preservation of Niagara Falls, and 
for other purposes," approved June 29, 190G, will expire by limitation on June 
29, 1910; and 

Whereas a tlate for the termination of the operation of said act was pro- 
\ided therein, but with a view to the more permanent settlement of the ques- 
tions involved by a treaty with (ireat Britain, and by further legislation appro- 
priate to the situation and such treaty not having been negotiated, it is desir- 
able that the provisions of said act should be continued until such permanent 
settlement can be made: Thei'efore be it 

Rfsolrcd. etc.. That the provisions of the aforesaid act be. and they are 
hereby, extended for two years from June 29, 1909, being the date of the expira- 
tion of the operation of said act, save .in so far as any portion thereof may be 
found inapplicable or already complied with. 

Approved, :Mflrch 3, 1909. 

Exhibit B. 

trkaty i'.ktwken the united states and great britain boundary waters 

between the united states and canada. 

ISi-ncd af Washington .lanuarv 11. 1!)00. Ratification advised by the Senate March 3. 
I'.Milt Ratified by the President April T. 1000. Ratified by Great Britain March 31, 
1".H(». Ratificatiohs exchanged at W'asliington. May T). 1910. Proclaimed May 13, lOlO.J 

.1 iintrhniKifion hij Ihc Presidriit of the United States of America: 

Whereas a treaty between the Unite<l States of America and His Majesty the 
King of I'nited Kingdom of Great Britain and Ireland and of the British Domin- 
ionsbeyoiid the Seas. Emperor of India, to prevent disputes regarding the use 
of boundary waters and to settle all (piestiims which are now pending between 
the United States and the Dominion of Canada involving the rights, obligations, 
or interests of either in relation to the other or to the inhabitants of the other. 
:ilong their common frontier, and to make provision for the adjustment and 
settlement of all such questions as may hereafter arise, was concluded and 
signed by their respective plenipotentiaries at Washington on tlie 11th day of 
January,' 1909, the original of which treaty is word for word as follows : 



394 PKESERVATIOX OF NIAGARA FALLS. 

The United States of America and His ^lajesty the King of the L'uited King- 
dom of Great Britain and Ireland and of tlie P.ritish Dominions beyond the seas. 
Emperor of India, being equally desirous to prevent disputes regarding the use 
of boundary waters and to settle all questions which are now pending between 
the United States and the Dominion of (.'anada involving the rights, obligations, 
or interests of either in relation to the other or to the inhabitants of the other, 
along their common frontier, and to make provision for the adjustmeni and 
settlement of all such questions as may hereafter arise, have resolved to con- 
clude a trejity in furtherance of these ends, and for that purpose have appointed 
as their res]iective plenipotentiaries: 

The President of the Unitetl States of America; Klihu Root, Secretary of 
State of the T'nited States; and 

His P>ritannic Majesty, the Right Hon. James Bryce, O. M.. his ambassador 
extraordinary and plenipotentiary at Washington ; 

Who, after having communicated to one another their full powers, found in 
good and due form, have agreeil upon the following articles: 

Preliminary article. For the purposes of this treaty boundary waters are 
definetl as the waters from main shore to main shore of the lakes and rivers 
and connecting waterways, or the portions thereof, along which the interna- 
tional boundary between the United States and the Dominion of Canada passes, 
including all bays, arms, and inlets thereof, but not including tributary waters 
which in their natural channels would tlow into such lakes, rivers, and water- 
ways, or waters flowing from such lakes, rivers, and waterways, or the w.iters 
of rivers flowing across the boundary. 

Article I. The high contracting parties agree that the navigation of all navi- 
gable boundary waters shall forever continue free and open for the purposes of 
commerce to the iidiabitants and to the ships, vessels, and boats of both coun- 
tries equally, subject, however, to any laws and regulations of either country, 
within its own territory, not inconsistent with such privilege of free navigation 
and applying equally and without discrimination to the inhabitants, ships, ves- 
sels, and boats of both countries. 

It is further agreed that so long as this treaty shall remain in force this 
same right of navigation shall extend to the waters of Lake Michigan and to all 
canals connecting boundary waters and now existing or which 'may hereafter 
be constructed on either side of tlie line. Either of the high contracting parties 
may adopt rules and regulations governing the use of such canals within its 
own territory and may charge tolls for the use thereof, but all such rules and 
regulations and all tolls charged shall apply alike to the subjects or citizens of 
tlie high contracting parties and the shii)s, vessels, and boats of both of the 
high contracting parties, and they shall be placed on terms of equality in the 
use thereof. 

Art. II. Each of the high contracting parties reserves to itself or to tlie sev- 
eral State governments on the one side and the Dominion or Provincial govern- 
ments on the other, as the case may be, subject to any treaty provisions now 
existing with respect thereto, the exclusive jurisdiction and control over the use 
and diversion, whether temporary or permanent, of all waters on its own side 
of the line which in their natural channels would fiow across the boundary or 
into boundary waters; but it is agreed that any interference with or diversion 
from their natural channel of such waters on either side of the boundary, result- 
ing in any injury on the other side of the boundary, shall give rise to the same 
rights and entitle the injured parties to the same legal remedies as if such 
injui'y took place in the country where such diversion or interference occurs; 
but this provision shall not apply to cases already existing or to cases expressly 
covered by special agreement between the parties hereto. 

It is understood, however, that neither of the high contracting parties intends 
by the foregoing ])rovisioii to surrender any right which it may have to object 
to any interference with or diversions of waters on the other side of the, 
boundary the effect of which would be productive of material injury to the navi- 
gation interests on its own side of the boundary. 

Art. III. It is agreed that, in addition to the uses, obstructions, and diversions 
heretofore permitted or hereafter providetl for by special agreement between 
the parties hereto, no further or other uses or obstructions or diversicms, 
whether temporary or permanent, of boundary waters on either side of the line, 
affecting the natural level or flow of boundary waters on the other side of the 
line, shall be made except by authority of the United States or the Dominion 
of Canada within their respective jurisdictions and with the approval, as herein- 
after provided, of a joint commission, to be known as the International Joint 
Commission. 



PEESEKVATION OF NIAGARA FALLS. 395 

Tlie forojioiiis ])rovisi(ms nro not iiitciKUMl to limit or iutorforc witii ihe exist- 
ing rights of tlie (iovoriuueiit of the United States on tlie one si(h; and Hie Cov- 
errunent of the Dominion of Can.-uhi on tlie other, to undertake and carry on 
governmental works in lionndary waters for the deepening of channels, the eon- 
struction of hreakwaters, the imiirovenient of liarhors, and other governmental 
works for the benefit of commerce and navigation, jtrovided that sncii works are 
wholly on its own side of the line and do not materially affect the level or tlow 
of the bonndary waters on the other, nor are sucli provisions iiitendwl to 
interfere with tlie ordinary use of snch waters for domestic and sanitary 
purposes. 

Akt. IV. The high contracting parties agree tluit, except in cases provided 
for by special agreement between tliem, they will not permit the construction 
or maintenance on their respective sides of the bonndary of any i-emedial or 
pi'otective works or any dams or other obstructions in waters flowing from 
boundary waters or in waters at ^i lower level than the boundary in rivers flow- 
ing across the boundary, the effect of which is to raise the natural level of 
waters on the other side of the boundary, unless the construction or mainte- 
nance thereof is approved by the aforesaid international .ioint commission. 

It is further agreed that the waters herein defined as boumlary waters and 
waters flowing across the boundary shall not be polluted on either side to the 
injury of health or property on the other. 

Art. y. The high contracting [larties agi'ee that it is expedient to limit the 
diversion of waters from the Niagara River so that the level of Lake Brie and 
the flow of the stream shall not be appreciably affected. It is the desire of both 
parties to accomplish this ob.1ect with the least possible injury to investments 
which have already been made in the construction of power plants on the 
United States side of the river under grants of authority from the State of New 
York, and on the Canadian side of the river under licenses autliorized by the 
Donnnion of Canada and the Province of Ontario. 

So long as this treaty shall remain in force, no diversion of the waters of the 
Niagara liiver above the Falls from the natural course and stream thereof shall 
be permitted except for the jnirposes and to the extent hereinafter provided. 

The United States may authorize and permit the diversion within the State of 
New York of the waters of said river above the Falls of Niagara, for power 
purposes, not exceeding in the aggregate a daily diversion at the rate of 20,000 
cubic feet of water per second. 

The United Kingdom, by the Dominion of Canada, or the Province of Ontario, 
may authorize and permit the diversion within the Province of Ontario of 
the waters of said river above the Falls of Niagara, for power purposes, not 
exceeding in the aggregate a daily diversion at the rate of 36,000 cubic feet of 
water per second. 

The prohibitions of this article shall not apply to the diversion of water for 
sanitary or domestic purposes, or for the service of canals for the jnirposes of 
navigation. 

Art. YI. The high contracting ])arties agree that the St. Mary and Milk 
Rivers and their tributaries (in the State of Montana and the Provinces of 
Alberta and Saskatchewan) are to be treate<l as one stream for the purposes of 
irrigation and power, and the waters thereof shall be apportioned equally between 
the two countries, but in making such equal apportionment, more than half may 
be taken from one river and less than half from the other by either country so 
as to afford a more beneficial use to each. It is further agreed that in the 
division of such waters during the irrigation season, between the 1st of April 
and 31st of October, inclusive, annually, the United States is entitled to a 
prior appropriation of 500 cubic feet per second of the waters of the Milk River, 
or so much of such amount as constitutes three-fourths of its natural flow, and 
that Canada is entitled to a prior appropriation of 500 cubic feet per second 
of the flow of St. Mary River, or so much of such amount as constitutes three- 
fourths of its natural flow. 

The channel of the Milk River in Canada may be used at the convenience of 
the United States for the conveyance, while passing through Canadian ter- 
ritory, of waters diverted from the St. Mary River. The provisions of Article II 
of this treaty shall apply to any injury resulting to property in Canada from 
the conveyance of such waters through the Milk River. 

The measurement and apportionment of the water to be used by each country 
shall from time to time be made jointly by the proi)erly constituted reclama- 
tion officers of the United States and the properly constituted irrigation officers 
of His Majesty under the direction of the international joint commission. 



396 PRESERVATION OF NIAGARA FALLS. 

AuT. VII. TIr' lii.irh ((.iitiatliiif; jcirtles ti.uree to t^staMisb and maiutain an 
international joint connnis-sion ol the Unittnl States and Canada composed of 
six connnissioners. three on the ]»art of the I'nited States appointe^I by the 
I'resident thereof, and three on the part of the Liiited Kingdom appointed by 
His Majesty on the reconmieudation of the governor in council of the Dominion 
of Canada. 

Art. VIII. This internationa] joint commission shall have jurisdiction over and 
shall pass upon all cases involving the use or obstruction or diversion of the 
waters with respect to which under Articles III and IV of this treaty the 
approval of this commission is required, and in passing upon such cases the 
commission shall be governed by the following rules or principles, which are 
adopted by the high contracting parties for this purpose: 

The high contracting parties shall have, each on its own side of the boundary, 
equal and similar rights in the use of the waters hereinbefore defined as 
boundary waters. 

The following order of precedence shall be observed among the various uses 
enumerated hereinafter for the.se waters, and no use shall be permitted which 
tends materially to contiict with or restrain any other use which is given 
preference cner it in this order of precedence : 

(1) Uses for domestic and sjinitary purposes. 

(2) Uses for navigation, including the service of canals for the purposes of 
navigation. 

(3) Uses for power and for irrigation purposes. 

The foregoing provisions shall not apply to or disturb any existing uses of 
boundary waters on either side of the boundary. 

The reqniremejit for an equal division may in the discretion of the connuis- 
sion be snsi»ended in cases of temporary diversions along boundary waters at 
points where such equal division can not be made advantageously on account 
of local conditions, and where such diversitm does not dimin!sh elsewhere the 
amount available for use on the other side. 

The commission in its discretion may make its approval iu any case C(mdi- 
tional upon the construction of remedial or iirotective works to compensate so 
far as possible for the jjarticular use or diversion proposed, and in such cases 
may require that suitable and adequate provision, approved by the commission, 
be made for the protection and iudeumity against injury of any interests on 
either side of the boundary. 

In cases involving the elevation of the natural level of waters on either side 
of the line as a result of the construction or maintenance on the other side of 
remedial or protective works or dams or other obstructions in boundary waters 
or iu waters flowing therefrom or in waters below the bounday in rivers flowing 
across the boundary, the commission shall require, as a condition of its approval 
thereof, that suitable and adequate provision, approved by it, be made for the 
in-otection and indenmity of all interests on the other side of the line which 
may be injin-ed thereby. ^ 

The majt)rity of the commissioners shall have i»ower to render a decision. 
In case the commission is evenly divided upon any question or matter presented 
to it for decision. se[)arate reports shall be made by the commissioners on each 
side to their own (Government. The high contracting parties .sliall thereupon 
endeavor to agree ui)on an adjustment of the question or matter of difference, 
and if i\n agreement is reacheil between them, it shall be reduce<l to writing in 
the form of a protocol, and shall be communicate<i to the commissioners, who 
shall take such further procee<^lings as may be necessjiry to carry out such 
agreement. 

Art. IX. The high contracting parties further agree that any other ques- 
tions or matters of difference arising between them involving the rights, obliga- 
ti<m.s, or interests of either in relation to' the other or to the inhabitants of the 
other, along the common frontier between the United States and the Dominion 
of Canada, shall be referred from time to time to the international joint com- 
missioii for examination and rejK)rt, whenever either the Government of the 
United States or the Government of the Domjuion of Canada shall request 
that such questions or matters of difference be so referred. 

The international joint commission is authorized in each case so referred 
to examine into and reiiort upon the facts and circumstances of the particular 
questions and matters referred, together with such conclusions and recom- 
mendations as may l>e appropriate, subject, however, to any restrictions or 
exceptions which may lie iuqjosed with respect thereto by the terms of the 
reference. 



PKKSEKVATION OF NIAGARA FALLS. 397 

Such rejK'its of the comruissiou shall not be regarded as decisions of tho 
questions or matters so submitted, either ou the facts or the law. and shall 
in no way have the character of an arbitral award. 

The commission shall make a joint report to both Governments in all cases 
in which all or a ma.iority of the commissioners agree, and in case of disagree- 
ment the minority may make a joint report to both Governments or scjiarate 
reports to their respective Governments. 

In case the commission is evenly divided upon any question or mailer re- 
ferred to it for report, separate reports shall be made by the commissinnors on 
each side to their own Government. 

Art. X. Any questions or matters of difference arising between the high 
contracting parties involving the rights, obligations, or interests of the United 
or of the Dominion of Canada, either in relation to each other or to their re- 
spective inhabitants, may be referred for decision to the international joint 
commission by the consent of the two parties, it being understood that on tho 
part of the United States any such action will be by and with the advice and 
consent of the Senate, and on the part of His Majesty's Government with the 
consent of the Governor General in Council. In each case so referred, ihe said 
commission is authorized to examine into and report upon the fads and 
circumstances of the particular questions and matters referred, together with 
such conclusions and recommendations as may be appropriate, subject, however, 
to any restrictions or exceptions which may be imposed with respect thereto 
by the terms of the reference. 

A majority of the said connnission sliall have power lo render a decision or 
finding upon any of the questions or matters so referred. 

If the said commission is equally divided or otherwise unable to render 
a decision or finding as to any questions or matters so referred, it shall bo 
the duty of the commissioners to make a joint report to both Governments. 
or separate reiwrts to their respective Governments, showing the different con- 
clusions arrived at with regard to the matters or questions so referre;!. which 
questions or matters shall thereupon be referretl for decision by the high con- 
tracting parties to an umpire chosen in accordance with the proced\ue pre- 
scribed in the fourth, fifth, and sixth paragraphs of Article XLV of The Il.igue 
convention . for the pacific settlement of international disputes, dated October 
18, 1907. Such umpires shall have power to render a final decision with resjiect 
to tliose matters and questions so referred ou which tlie commission f;iiled lo 
agree. 

Aet. XI. A duplicate original of all decisions rendered and joint reports 
made by. the commission shall be transmitted to and filed with the Secretaiy of 
Stale of the United States and the Governor General of the. Dominicm of Can- 
ada, and to them shall be addressed all communications of the commission. 

Art. XII. The International Joint Connnission shall meet and organize 
at Washington j)romptly after the members thereof are appointed, and when 
organized the commission may fix such times and places for its meetings as 
may be necessary, subject at all times to special call or direction by the two 
Governments. Each conmiissioner, upon the first joint meeting of the commis- 
sion after his appoininient, shall, before proceeding with the work of the com- 
mission, make and subscribe a solemn declaration in writing that he will faith- 
fully and impartially i)erform the duties imposed upon him under this treaty, 
and such declaration shall be entered ou the records of the proceetlings of the 
commission. 

The United States and Canadian sections of the commission may each ap- 
jtoint a secretary, and these shall act as joint secretiiries of the commission at 
its joint ses.sions, and the commision may employ engineers and clerical assist- 
ants from time to time as it may deem advisable. The s;\laries and personal 
expenses of the commission and of the secretaries shall be paid by their re- 
spective Governments, and all reasonable and neces.sary joint expenses of the 
comnnssion incurred by it shall be paid in equal moieties by the high coniract- 
ing parties. 

The commission shall have power lo administer oaths to witnes,ses and to 
take evidence on oath wdienever deemed necessary in any proceefling or inquiry 
or matter within its jurisdiction under this treaty, and all partes interested 
therein shall be given convenient opportunity to be heard, and the high con 
tracting parties agree to adopt such legislation as may be appropriate and 
necessary to give the connnission the iH)wers above mentionetl on each side of 
the boundary, and to provide for the issue of subpoenas and for compelling the 
attendance of witnesses in pi-oceedings before the commission. The commis- 

28305-12 26 



398 PRESERVATION OF NIAGARA FALLS. 

siuu may ;uloi>t such iiili's of prot-etlure ms shall he in accordance with justice ^ 
and equity, and may make such examination in person and through agents or -^ 
cni|)]oycos as m.iy he (h'emed advisjihle. ^^ 

Akt. XIIL In all cases where sjiec-ial ajrreements between the hiph coiV'~>^ 
Iractinir parries hereto are referrefl to in the forejioinc articles such ajirc^ 
ments are understootl and intended to iuclnde not (tnly direct agreements be- 
tween the hifih contracting: parti»>s. hut al8t> any mutual arran<renient between 
the United States and the Dominion of Canada expressed by concurrent or 
reciprocal leirislation on the part of Congress and the rarliament of the Df>- 
iiiinif>n. 

Ai!T. ,\l\'. 'ilie pres^Mit treaty shall be ratitied by the President of the 
I'nited States of America, by and with the advice and consent of the Senate 
thereof, and l»y His Kritannic Majesly. The ratifications shall be excliansed 
at Washington as soon as ]iossible. and tlie treaty shall take ettect on the date 
of the exchange of its ratittcations. It shall remain in force f<n" five years, 
dating from tlie day of exchange of ratifications, and tliereafter until tenui- 
nated by 12 nxmths' written notice given by either high contracting party to 
the other. 

In faith wliereof the respective plenipotenfiaries have signed this treaty in 
duplicate and have hereunto affixed their seals. 

Done at Washington the eleventh day of January, in the year of our Lord one 
thousand nine Inmdrcil and nine. 

Elihu Root. [seal.] 
Jami:s r.KYCic [seal.] 

And whereas tin- Senate of the United States by their resolution of Marcli 3, 
IJMitt (two-thirds of tlie Senators present concurring therein), did advise and 
consent to the ratification of the said treaty with the following understanding, 
to wit : 

Resolved further {as <i part of ttiix ratifiedtion). That the I'nited States 
approves this treaty with the understanding that nothing in this treatj' shall 
t>e construed as affecting or changing any existing territorial or rii»ariau 
rights in the water, or rights of the owners of lands under water, on either 
side of the international boundary at the rapids of the St. ^Mary's Kiver at 
Sault Ste. Marie in the use of the waters flowing over such lands, subject 
to the x-equirements of navigation in boundary waters and of navigation 
canals, and without prejudice to the existing right of the United States and 
Canada each to u.se the waters of the St. Mary's River within its own terri- 
tory : and, further, that nothing in this treaty shall be construed to interfere 
with the drainage of wet. swamp, and overflowed lands into streams flowing 
into boundary waters, and that this interpretation will be mentioned in the 
ratification of this treaty as conveying the true meaning of the treaty and will, 
in effect, form part of the treaty. 

.Vnd whereas th»> said understanding has been accepted by the Government 
of (Jreat Britain and the ratifications of the two Governments of the said 
treaty were exchanged in the city of Washington on the 5th day of May, 1910: 

Now therefore, be it knoVn that I. William Howard Taft, I'resident of the 
United States of America, have caused the said treaty and the said under- 
standing as forming a part thereof to be made public to the end that the same 
and every article and clause thereof may be observed and fulfilled with good 
faith bv "the United States and the citizens thereof. 

In testimony whereof I have hereunto set my hand and caused the seal of 
the I'nited Stiites to be artixed. 

Done at the city of Washington this thirteenth day of May. in the year of our 

Uord one thousand nine hundred and ten. and of the independence of the 

T'nited States of America the one hundred and thirty-fourth. 

Bv the Rresident: 

Wm. TI. Taft. 

|si;ai.. I V. <'. K.N'ox. 

Seeretar]/ of i^tdte. 

I'KOTOCOl. or IXCHANCK. 

On proceeding to the c\ch:inge of the ratificaticais of the treaty signed at 
Washington on Januarv 11. 11)00. between the UnitiKl States and Great Britam, 
relating to boundary waters and questions arising along the boundary between 
the United States "and the Dominion of Canada, the undersigned p enipo- 
tentaries duly authorized thereto by their respective Goverments, hereby de- 



PRESERVATION OK NIAGARA FALLS. 399 

<laie that notbinjj; in this treaty shall be construed as affecting or changing 
any existing territorial or riparian rights in tlie water, or rights of the owners 
of lands under water, on either side of the international boundary at the 
rapids of the St. Mary's River at Sault Ste. Marie in the use of the waters 
tlowing over such lauds subject to the requirements of navigation in boundary 
waters aud of navigation canals and without prejudice to the existing right 
of the United States and Canada each to use the waters of the St. Mary's 
liivor within its own territory; and. further, that nothing in this treaty 
shall be construed to interfere with the drainage of wet, swamp, and over- 
flowed lands into streams flowing into boundary waters, and also that this 
declaration shall be deemed to have equal foive and effect as the treaty itself 
and to form an integral part thereto. 

The exchange of ratifications then took place in the usual form. 

In witness whereof they have signed the present protocol of exchange and 
have affixed their seals thereto. 

Done at Washington this 5th day of May, 1910. 

Philander C. Knox, [seal.] 
James Bryce. [seal.] 



[H. R. 7604, Sixty-second Congres.s, first session. In the House of Representatives, April 
27, 1911. Mr. Simmons introduced the following bill, which was referred to the com- 
mittee on Foreign Affairs and oi'dered to be printed.] 

A BII.I. To give effect to the fifth article of the treaty between the United States and 
Great Britain, signed January 11, 1909. 

Be it enacted by the Senate and House of Representatives of the United States 
(if Atncriea in Congress assembled. That no water sliall be diverted from the 
Xiagara River above the Falls of Niagara within the State of New York for 
power pnrjxises without the written consent of the Secretary of War, who is 
hereby authorized to give such consent, by revocable permits, to persons, com- 
panies, or corporations having authority from tlie said State to make such di- 
versions, and to a total amount not exceeding in the aggregate the amount 
allowed by the treaty between the I'nited States and Great Britain, signed at 
Washington on the lltb day of January in the year 1909: Provided, Tliat no 
such permit shall be granted allowing diversions of water exceeding in the 
aggreg;ito l.'i.CiOO cubic feet per second without the consent of tlie State of New 
York and ol the commissioners on tlie part of tlie United States in the inter- 
national .joint commission provided for ijy said treaty. 

Every diversion of water in violation of the foregoing provisions shall be a 
misdemeanor punishable by a fine not exceeding $2,500, or by imprisonment not 
exceeding one year, or both, in the discretion of the court. 

The Secretary of War shall make regulations for preventing the diversion of 
water from the Niagara River above tlie Falls of Niagara in excess of the 
amounts consented to by him pursuant to the said treaty and to this act. and 
all permits for the diversion of water granted under the act entitled "An act for 
the control and regulation of the waters of Niagara River, for the preservation 
of Niagara Falls, and for other purposes." approved June 29, 1900. shall con- 
tinue in force until revoked by the Secretary of War or superseded by other 
permits issued by hini. 



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